Legislature(1995 - 1996)
01/25/1995 01:05 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
January 25, 1995
1:07 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice-Chair
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
COMMITTEE CALENDAR
* 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."
HEARD AND HELD
* HB 26"An Act revising Rule 15, Alaska Rules of Criminal
Procedure, relating to depositions, to adopt the
comparable federal rule."
PASSED OUT OF COMMITTEE
WITNESS REGISTER
JAY MILLER, Chief
Forensic Science Systems Unit
Federal Bureau of Investigation Laboratory
Washington D.C.
(301) 779-3166
POSITION STATEMENT: Provided Information Supporting HB 27
GEORGE TAFT, Chief
Alaska State Department of Public Safety
Scientific Crime Detection Laboratory
5500 East Tudor Road
Anchorage, Alaska 99507-1221
(907)338-6614
POSITION STATEMENT: Provided Information Supporting HB 27
DEAN GUANELI, Assistant Attorney General
Criminal Division, Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
(907)465-3428
POSITION STATEMENT: Provided Information Supporting HB 27
LAUREE HUGONIN, Executive Director
Alaska Network on Domestic Violence
& Sexual Assault
130 Seward Street, Suite 501
Juneau, AK 99801
(907)586-3650
POSITION STATEMENT: Provided Information Supporting HB 27
LEE ANN LUCAS, Special Assistant
Department of Public Safety
P.O. Box 11200
Whittier Street
Juneau, AK 99811-1200
(907)465-4322
POSITION STATEMENT: Provided Information Supporting HB 27
PREVIOUS ACTION
BILL: HB 27
SHORT TITLE: DNA TESTING OF CONVICTED SEX OFFENDERS OFFENDERS
SPONSOR(S): REPRESENTATIVE(S) PARNELL, Toohey, B.Davis, Porter,
Green, Bunde
JRN-DATE JRN-PG ACTION
01/06/95 27 (H) PREFILE RELEASED
01/16/95 27 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 27 (H) JUD, FIN
01/18/95 75 (H) COSPONSOR(S): GREEN
01/19/95 89 (H) COSPONSOR(S): BUNDE
01/20/95 104 (H) COSPONSOR(S): TOOHEY
01/23/95 118 (H) COSPONSOR(S): TOOHEY-1ST COSPONSOR
01/25/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 26
SHORT TITLE: DEPOSITIONS IN CRIMINAL CASES
SPONSOR(S): REPRESENTATIVE(S) PARNELL, Porter, Green, Bunde,
B.Davis
JRN-DATE JRN-PG ACTION
01/06/95 27 (H) PREFILE RELEASED
01/16/95 27 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 27 (H) JUD, FIN
01/18/95 75 (H) COSPONSOR(S): GREEN
01/19/95 89 (H) COSPONSOR(S): BUNDE
01/25/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-1, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:07
p.m. on January 25, 1995. A quorum was present. CHAIRMAN BRIAN
PORTER announced Representatives Green, Bunde, Vezey, Toohey, and
Davis were present. He noted Representative Finkelstein would be
late. He stated that the following bills would be heard: HB 27,
and HB 26.
HJUD - 1/25/95
HB 27 - DNA TESTING OF CONVICTED SEX OFFENDERS
CHAIRMAN PORTER called Representative Sean Parnell, sponsor of HB
26, forward to discuss HB 27. The meeting was teleconferenced to
Anchorage and Washington D.C.
Number 024
REPRESENTATIVE SEAN PARNELL, sponsor of HB 27, noted that 26
states, at last count, have enacted DNA data banks in one form or
another. The original filed bill was directed at registering DNA
samples of sex offenders. The committee substitute expands that to
include anybody convicted of a felony crime against a person. The
bill, in short, does about four or five things. One, it requires
the Department of Public Safety to establish the DNA identification
registration system of persons committing violent crimes against
persons. Second, it requires that a person convicted of a violent
crime have a blood sample drawn for purposes of DNA identification
analysis. Third, the DNA identification, under the bill, may not
be used for any purpose that is not related to a criminal
investigation or to improving operation of the DNA registration
system. There are some other uses there, but we are basically
trying to limit access to the data. We do not want it getting out
into the private sector. Fourth, it requires the system to be
compatible with the system currently being managed and developed by
the Federal Bureau Investigation.
REPRESENTATIVE FINKELSTEIN arrived.
REPRESENTATIVE PARNELL stated if you look at modernization of the
criminal justice system and law enforcement in general, you think
back to the time when fingerprinting were a new technology, and
then they started collecting fingerprints, and now law enforcement
can look to prints if they do not have a match in their local
database; they can go to the FBI and see if they have a match.
Similarly with a blood sample, the idea is that, in the future, if
we do not have a match against the state DNA data bank, they will
be able to turn to the FBI and send the DNA sample there to see if
they have a match. I think, just before the committee meeting
started, you received what is entitled "The Summary of DNA Database
Hits in Minnesota." This is an example of how the database has
been used there successfully to solve some crimes that otherwise
would have been much more difficult to solve.
REPRESENTATIVE PARNELL addressed the question of why is the bill is
needed. Primarily, the bill addresses the high recidivism rate of
this class of felons. It helps identify perpetrators who have a
high likelihood of committing crimes again. U.S. Justice
Department studies, in the late 1980s, confirmed that over 62.5
percent, or roughly that number, were going to re-offend, and were
back in prison within three years after being released. In sexual
assault cases and sexual offenses, the recidivism rate is going up,
but also in the late 1980s the rate was at 64 percent; 64 percent
of sexual offenders were going to wind up in prison again, so
taking blood samples for DNA identification registration once a
person is convicted, will enable law enforcement to stop the repeat
offense from occurring, and deter those who otherwise might go out
and commit these offenses again.
REPRESENTATIVE PARNELL made the point that enactment of the bill
will also enable Alaska to join the national effort that is
ongoing, in conjunction with the FBI, towards modernizing its
criminal justice system. We have had a number of discussions with
the Department of Law, and the Department of Public Safety on how
exactly this could work, and we have representatives here from each
of those departments. We also have a DNA expert, on
teleconference, from the FBI in Washington DC, as well as George
Taft from the Anchorage Crime Lab, who would essentially be
coordinating this for Public Safety.
REPRESENTATIVE PARNELL urged Chairman Porter's support of the bill.
He has made some changes to the bill. Draft "F" is what he would
like to see the committee adopt as its working vehicle, and then
amend it as some of those changes are talked through.
Number 159
CHAIRMAN PORTER asked if there were any questions for
Representative Parnell before the other testimony. Hearing none,
he asked if either Jay Miller or Richard Guerrieri were available,
via teleconference, in Washington D.C. The bridge operator
explained that neither of the Washington D.C. witnesses had phoned
in yet, so Chairman Porter asked for George Taft's testimony, from
Anchorage.
Number 170
GEORGE TAFT, CHIEF, ALASKA CRIME DETECTION LABORATORY, had looked
through the bill and felt it certainly was doable, and the
laboratories would have to work with the Department of Corrections
on it.
Number 180
CHAIRMAN PORTER noted that judging by the fiscal note, it would be
a couple of years before the system was up to speed, but you could
begin sample taking and storing now. He asked Mr. Taft to expound
on that process.
MR. TAFT said they could certainly be on line by the date projected
by this bill, to collect samples and have those samples on line for
future reference.
Number 190
REPRESENTATIVE CON BUNDE asked some general questions on how this
procedure works. Once the sample is taken, and then the DNA test
is accomplished, then are the results stored as a film? Or how are
they stored? And what are the steps involved for security so that
samples are not confused and/or misused?
Number 205
MR. TAFT said the samples would be taken and stored like any other
criminal evidence in the laboratory. (Indisc. - paper shuffling).
REPRESENTATIVE BUNDE understood that the sample would be stored as
a blood sample, and then refrigerated.
Number 215
REPRESENTATIVE PARNELL asked Mr. Taft to clarify how the blood
samples would be stored, whether in vials of blood, or on swatches
of cloth?
Number 222
MR. TAFT said they could treat it and store it either of those two
ways.
Number 225
REPRESENTATIVE JOE GREEN asked a couple of questions. First, he
asked if by freezing, is that sealed, as well? His concern was
that some products after a certain length of time, vary once they
are frozen. Even though they are frozen, there are changes. Would
there be any kind of a change that could render the sample
inadmissable, or unreliable with time?
Number 238
MR. TAFT knew of no change that could occur in the near future with
the frozen blood samples.
REPRESENTATIVE GREEN also expressed concern over the zero fiscal
note.
He was informed by other committee members that additional fiscal
notes exist, with costs.
CHAIRMAN PORTER stated that we have received a fiscal note from the
Department of Law, and three from Public Safety; one from Records,
one from the Lab, and one from the computer system.
REPRESENTATIVE CYNTHIA TOOHEY asked Mr. Taft if she was correct in
assuming that the samples are automatically tested when received
to alleviate losing the samples if the electricity went out.
Number 275
MR. TAFT answered that under this scenario, we would not do the DNA
testing right away.
REPRESENTATIVE TOOHEY asked why not now.
MR. TAFT said the technology is so rapidly changing and technology
is getting less expensive all the time. We are going from a 386 to
a 486 and feel like we could warehouse these samples for the time
being.
REPRESENTATIVE TOOHEY asked if Mr. Taft knew the cost of one DNA
test now.
MR. TAFT said it could run anywhere from $50 to $500, depending on
what is asked for.
Number 290
REPRESENTATIVE BUNDE made it known that he does not oppose the
bill, but wanted to ask a question for the purpose of gathering
information. He asked Mr. Taft to share some of the security
procedures involved following an actual drawing of a sample.
Number 299
MR. TAFT explained that they have strict control over any evidence
they receive. They seal the blood sample until it is analyzed and
identified, reseal it, and then it is frozen. The Crime Lab has a
backup generator system that does not allow them to be without
power, so there is no need for concern about that.
Number 311
CHAIRMAN PORTER reaffirmed with Mr. Taft that it goes without
saying that the general public is not allowed access to any of
these areas. He then asked for further questions.
Number 320
REPRESENTATIVE DAVID FINKELSTEIN asked if all the equipment and
machinery would be covered separately from the operating costs.
Number 328
MR. TAFT replied that there would not really be any capital costs,
because most of that equipment is already in the lab's possession.
Number 330
REPRESENTATIVE AL VEZEY asked about the cost of the DNA test. He
has never heard of a DNA test in that order of magnitude. He asked
Mr. Taft to explain. He assumed they were doing an extremely
limited test, if they are doing it for those kind of dollars. He
said he cannot even get his water tested for that kind of money.
Number 345
MR. TAFT repeated that the technology is getting cheaper and
cheaper.
Number 348
CHAIRMAN PORTER asked Mr. Taft about the fiscal impact over the
next two years. As the fiscal note states, there may be 300
individuals per year who may have a sample taken; and more than
300, if the committee substitute is adopted. He asked what
procedure would be used two years from now if the police were
investigating a crime that had a blood sample from a suspect.
Would they be able to somehow efficiently run the identification of
that sample against all 600 or 1000 of your samples, or would you
have to have a name to really check it against?
MR. TAFT answered that they would have to have a profile to check
it against and, at this time, from this we would not have that.
CHAIRMAN PORTER understood that at some time in the future, Mr.
Taft is hoping the technology will come along to help classify the
samples so that those kinds of tests, like the automated
fingerprint system, can be done.
Number 373
MR. TAFT clarified that. He said they could go back and pull their
name out.
Number 375
CHAIRMAN PORTER mentioned that is basically the difference between
the old fingerprint system and the new fingerprint system.
Number 380
JAY MILLER, UNIT CHIEF, FBI LABORATORY, FORENSIC SCIENCE UNIT,
explained he is responsible for the development of the database
system software called Combined DNA Index System (CODIS). He also
is responsible for the DNA Identification Act which passed last
September, as part of the new national crime bill.
Number 395
CHAIRMAN PORTER asked Mr. Miller to explain the procedures and
types of cases that can be made, and how they are made with DNA.
Number 402
MR. MILLER thinks of DNA testing as a very discriminating form of
looking at evidence in murder and rape cases as a forensic tool.
The O. J. Simpson case is a good example of how discriminating that
evidence can be using DNA testing. He described two scenarios
where DNA data bases were particularly useful. One is where you
have an unknown suspect of serial sexual assaults, where, by
charging the DNA profile from the rape evidence even when you do
not have a suspect, it is possible to link serial cases to each
other through the rape evidence. That assumes that the procedures
within the laboratory followed are for unknown subject rape cases.
Unless they have a suspect, they do not tend to work the DNA
evidence, it is not DNA evidence, but typically, typing is done
only if you have a suspect available. But the value of the DNA
database is that you can link serial rape cases to each other, and
by doing that, you can help focus the investigative information and
possibly identify the suspect through other investigative
information. But if you had a DNA profile on record of previously
convicted sex offenders, it is definitely possible to identify
suspects from unknown subject rape cases.
MR. MILLER explained about two-thirds of convicted sex offenders
are rearrested within three years for a similar offense, and about
one in eight are rearrested in a state other than the state in
which they were originally arrested. So there is some interstate
mobility of sex offenders, but in the case of Alaska, I would
imagine that the interstate mobility issue is not really an issue.
The primary uses of having DNA profiles on record will help to
identify suspects, and having a DNA database system and software,
the FBI provides to crime laboratories for free. It allows us to
store DNA records for free. Clearly, the DNA testing is useful to
crime laboratories.
Number 463
CHAIRMAN PORTER informed Mr. Miller that Alaska is only three hours
from America, so interstate problems do exist here too.
Number 466
MR. MILLER apologized.
Number 468
REPRESENTATIVE GREEN said he does not know anything about the body,
but in his other life, he worked in the petroleum field and if they
were to mix different types of crude oil, sometimes yes, sometimes,
no, through some pretty sophisticated testing, they could tell
there was a hybrid, and even proportionally tell which types of
crude. In other cases it would not work. Is there any analogy
with blood testing? Say the assailant and the victim's blood
commingled somehow, could that be sorted out?
Number 480
MR. MILLER said "yes, there are ways." He asked Mr. Taft if he
would like to answer that question.
Number 485
MR. TAFT let Mr. Miller go first.
Number 486
MR. MILLER explained that most DNA testing is done in rape cases.
That is why he tends to focus on that. Also the database is useful
when you have a mixed sample. With a rape kit, you do, in fact,
have DNA from the slide. You do have epithelial skin cells from
the female victims mixed with DNA from the male semen. There are
processes in all the procedures for separating the male and the
female DNA cells. He said Mr. Taft can explain that better. There
is a way to separate the different contributions based on the
physical characteristics of sperm cells versus skin cells.
MR. MILLER described the case of mixed blood samples in a murder
investigation. We have bloody clothing or carpet or some other
material is picked up to use as a sample. You cannot separate
blood from blood, but each person who contributed to the blood will
have a unique banding pattern that can be identified. From the two
bands that come from each person, even if they are mixed in with
another person, it is possible with known blood samples, to tell
which of the mixed samples those bands belong to. So if you have
known samples from three people, and you have a mixed blood stain
from a piece of evidence, it is possible to tell that two or three
people were, in fact, contributors to that mixed stain.
Number 521
CHAIRMAN PORTER asked if anyone else had questions.
Number 523
REPRESENTATIVE VEZEY asked why we need the statute. Are we
prohibited from collecting samples from suspects charged with a
felony at this time? He did not believe so. He thought samples
were already being taken, and that it sounds like a multimillion
dollar project. Why does this bill limit testing for this purpose?
It seems like the biggest chunk of this bill would be the cost of
cataloguing it.
Number 550
CHAIRMAN PORTER suggested the Department of Law would be better
able to address some of these legal questions.
Number 552
MR. MILLER did not know of any reason you could not do that, but
all states that have established a DNA database system do, in fact,
have specific laws authorizing the taking of blood samples and the
storing of those in a state controlled database. The sensitivity
is one of civil liberties concern. Because you are dealing with
genetic information, people tend to get very sensitive to beginning
the law enforcement database of genetic information unless there is
specific public policy that has been statutorily established.
Number 578
REPRESENTATIVE FINKELSTEIN asked about the states having specific
statutes. Do most of these cover just murder, rape situations, or
do some of them actually go down and cover robberies, assaults, and
other categories?
Number 581
MR. MILLER answered that all state laws cover felony sex offense.
Some include misdemeanor sex offenses. Other states, like
Minnesota, include murder offenses and felony sex offense. Both
Virginia and Alabama cover (indisc.) which generates tremendous
numbers of blood samples, which are not probably very well suited
for this use. And some states do, in fact, include burglary and
other violent crimes, such as aggravated assaults. The reason some
will have burglary, especially home invasion, is that often times
the charges of rape, or far down to the non violent offenses, when
you have a blood sample from a person who is already known to break
into a house, it is a good predictor of future usefulness for law
enforcement, if you have that blood sample, it might aid a future
identification.
Number 610
REPRESENTATIVE FINKELSTEIN understood that in cases of just a more
average burglary, the reason states do not use it as much, is
because it is less likely to produce a useful sample. It is not
the kind of crime that is likely to have that kind of DNA
involvement, is that correct?
Number 620
MR. MILLER said the answer is yes, burglary by itself is not an
indicator of future (indisc.). In one of the states, perhaps
Texas, the discretion is left to the prosecutor to recommend to the
judge as a part of the sentencing order, to include taking of a
blood sample, if things like plea bargains or other considerations
would not otherwise include a person in the database. That is one
way of handling that issue.
Number 630
REPRESENTATIVE PARNELL stated the bill says the DNA identification
registration system, as established shall be compatible with that
utilized by the FBI. Later on in the bill, on page 2, it says that
the equipment of a local system is compatible with that of the
state's system. Basically we are trying to create a patchwork here
that is consistent at the federal level, state level, and the local
level. Can you comment? I understand you have some concerns on
that. Maybe you can tell us what it takes to be compatible with
the FBI's system.
Number 640
MR. MILLER said the focus in the section on compatibility seems to
focus on the physical things, like equipment, or administrative
procedures, rather than what I think is at least as important a
consideration, and that is the actual DNA typing test that is used.
You could have two laboratories in a state that are using the same
equipment and the same administrative procedures, but if they are
using different typing methods, the results, the DNA profiles will
not be comparable. If what you are seeking is the notion of
statewide compatibility among crime laboratories for DNA testing,
then I would suggest that there be a reference to the equipment and
the methods of DNA typing, at the local level, being consistent
with the state system. His suggestion was to insert the words,
"DNA typing methods".
Number 670
REPRESENTATIVE BUNDE said with this kind of compatibility in mind,
he requested that Mr. Miller comment on the procedures, assuming
that in Alaska, if a DNA sample is needed to be checked with the
FBI sample, we would send the actual body fluid to the FBI. Or do
you get the results of the local DNA test?
Number 672
MR. MILLER said it could be done either way. The FBI laboratory
does have a large case work unit, and they do process DNA from any
laboratory that submits it. It does have DNA testing capabilities
itself. Presently, we are only testing known subject cases. So
currently, our present capacity will not allow use to accept
unknown subject cases, but we do DNA typing for about 2,500 DNA
cases a year, from all over the country. As your question relates
to using the national database; what we are setting up, and what
the service is that the FBI is providing to the states is a
clearinghouse function. The DNA profiles that are going to be in
the national database are, by and large, except for the few that
are actually generated by our laboratory, the bulk of those,
probably 95 percent at least, are going to be (indisc.) the state.
And all of the convicted offenders samples that would be in the
national database would be across the state. So, the code of
assistance that we are going to operate in is to make that software
available to each participating crime lab around the country. This
software runs on IBM Personal Computers, which we provide free,
including the training and support. We will allow, through a
network, states to exchange records with each other through this
national crime clearinghouse. The national system is not so much
to do the DNA testing, but to offer an interstate comparison link
to tell law enforcement agencies that they are, in fact, dealing
with the same person.
Number 707
REPRESENTATIVE BUNDE asked Mr. Miller what Alaska would need in
order to be compatible with this nationwide data bank.
Number 712
MR. MILLER understood that Alaska would plan to defer the actual
DNA typing for now, but to first establish a sample bank.
Number 717
CHAIRMAN PORTER confirmed that to be true.
Number 718
MR. MILLER said they were looking at the method of using STRs which
is a fairly new test within the generation of what is called TCR
testing, (indisc.) Chain Reaction testing. Any of those tests
based on TCRs which are currently available, or which are now
undergoing validation studies around the country, which the lab
chooses to use will be compatible with our software, and we will
provide the software to any crime lab in Alaska that wants it, and
it will save you the expense and trouble of having to build a
computer system to match these records. Any of those records you
want to compare with other states, that is the clearinghouse
function that we provide.
MR. MILLER said he is not aware of any of the procedures that are
either currently in use in Alaska, or that are being talked about
for the future that would be incompatible with what is going on in
the rest of the country, or incompatible with the FBI's national
system.
Number 737
REPRESENTATIVE BUNDE said it is reassuring to know that the right
hand knows what the left hand is doing when it comes to federal and
state government.
Number 739
CHAIRMAN PORTER added, "even local."
Number 740
REPRESENTATIVE VEZEY asked what the cost of this process is these
days.
Number 745
MR. MILLER said there is DNA typing and then there is DNA typing.
We have to be clear about what kinds of DNA tests are being done.
If you are talking about the cost of doing a single sample from a
convicted offender, using the method that is currently in use in
most States, which is the older restriction fragment length
polymorphism (RFLP) method; those tests can be done where you send
a batch of blood samples to the contractor, and they test on three
markers within the DNA molecule. There are commercial companies
that will do that test in the range of $50 a sample for three
markers. That is using the RFLP method and it is not the extent
that DNA is tested within a case, where you have multiple samples,
and you have preparation work, and you have to qualify the DNA that
you have, and there is a lot of preparation time and effort. A
single sample in a commercial lab, RFLP for three markers these
days, falls within the range of $50 to $75. If Alaska is not going
to be using RFLP, and I understand you are not planning to use this
for the database; TCR methods, generally, and especially the ones
that come in a commercial kit, are easier to work with and are
quicker. They also tend to be a little more expensive, per test.
But what the current costs are on those, he is not exactly sure.
Mr. Taft, who uses two or three of those systems, would be better
able to tell you what the cost of those are, if they were used for
the database samples. So, it all depends on what scenario you are
talking about.
Number 773
REPRESENTATIVE VEZEY asked about the three identifying markers. He
wondered, with his limited understanding of biochemistry and
criminology, how you can identify a very large population using
three markers.
Number 780
MR. MILLER said that each marker, within the molecule, has many
different forms in the human population. These are polymorphic
regions that carry across the populations. Three markers within
the RFLP system will get you numbers in the range of one in 10,000
and one in 100,000, typically. PCL markers tend to be a little
more discriminating, and are easier to work with. If you are
talking about 300 samples a year, all convicted offenders, and you
are talking about rape cases; that still may be in the area of 200
a year, and you do not need discrimination levels to be in the one
in a million category to be useful. In Alaska, if within the next
ten years you have accumulated 3,000 to 5,000 samples, you really
only need a discriminating level of distinguishing, say one in five
or one in 10,000. Those levels of discrimination are reachable
within the PCR systems that are currently available. On a national
scale, it would be a (inaudible) with limited discrimination
levels, but within the state of Alaska, in a database where there
is really only going to be less than 10,000 samples for the next
many years, it should not be a problem.
Number 805
REPRESENTATIVE VEZEY thanked Mr. Miller.
Number 806
CHAIRMAN PORTER asked if there were any other questions for Mr.
Miller. Hearing none, he requested testimony from an individual in
D.C. As no one was available from D.C., he asked Mr. Guaneli from
the Department of Law to testify, and welcomed him back.
MR. DEAN GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW gave a preface to his testimony, saying the
Administration has not taken a position on this or any of the DNA
bills, or really any of the crime bills. Those positions are in
the process of being formulated, and it is probably going to be
after the budget is submitted before we reach some of those
decisions. We have been authorized to indicate in this bill, or
any number of bills, what the impact would be on the criminal
justice system and on criminal prosecution, specifically.
MR. GUANELI agreed, in general, with the comments made by everyone
else that DNA testing is powerful evidence in criminal
prosecutions, particularly in murder and rape cases where there is
no eye witness; where the issue at trial is identity. In other
words, "Who committed this crime?" Did this specific individual
commit this crime? DNA evidence is often the best evidence you can
have. In light of the unfortunate recidivism we have in this state
and others, it is fair to say a number of people in jail now are
going to be committing crimes in the future, and so there is a
rational basis for this kind of testing of people who have
committed violent crimes in the past.
MR. GUANELI made it known that this is really only half of the
issue from his standpoint. Using this as an investigative tool to
solve criminal cases does not get people convicted of the crime
unless it is admissible in court. So there is a whole other part
of the DNA question. That is the admissability in court and what
level of scientific evidence is going to be admissible, and what
the jury will hear. Although this is something that is valuable,
it is less valuable unless we also make sure at least one of the
admissability bills passes this legislature.
MR. GUANELI referred to Representative Vezey's question as to why
we need legislation in this area. That is a fair question, but we
have certainly taken the approach in other areas such as testing
for the HIV virus in convicted sex offenders. More legislation was
enacted. As the gentleman from the FBI said, with things like
genetic testing and computer databases on people, and the whole
idea of the government keeping files and lists on people, it is
always safest to have legislation, and testimony as you have gotten
today from the experts, in the field to...
TAPE 95-1, SIDE B
Number 000
MR. GUANELI (continued) one, show that this is a reliable testing
method, and two, that appropriate safeguards are going to be
applied for both the testing and the confidentiality of it, and
that there is some relationship between the taking of blood from
convicted violent offenders and future investigative needs. Once
the legislature has made all of those determinations in enacting a
piece of legislation, it certainly helps when the Department of Law
is faced with the inevitable challenge amounted by some convicted
person who does not want his or her blood drawn. Armed with that,
we have a much greater chance of success, as other attorney
general's offices have had in other states when their DNA testing
laws have been challenged. For that reason alone, it is an
appropriate subject for legislative action. He asked if there were
other questions.
Number 021
REPRESENTATIVE GREEN noted he has one question, assuming we are all
watching the Simpson trial. He asked Mr. Guaneli's opinion,
starting from a clear-cut, good, no-question sample to some of
these gradations that we have talked about where they may be mixed
or if he had a feel for the acceptability of this as at least
supplemental to two of the things in the trial.
Number 035
MR. GUANELI answered that those are legitimate questions, and he
would be interested to hear the explanation from the FBI about the
ability to separate samples. With DNA testing, like fingerprint
testing, once you have used it as an investigative tool and you
have narrowed your focus down to one person; whether the samples
have been mixed at that point, you can always draw another sample
of blood from that person who you focussed in on. It is a little
like taking a fingerprint from that person. If it is smudged a
little, you can take another fingerprint from the person and make
whatever comparisons you can make. It is different from driving
while intoxicated testing where you are taking a snapshot of the
person's breath or blood at that moment, and you have got to do the
testing fairly soon, as it disappears. With DNA testing, your
genetic fingerprint does not change, and so it is appropriate to
use it as an investigative tool, focus in on an individual, and if
that individual has some question, draw another sample of blood and
let them test it if they want to. There are always going to be
questions when you have mixed samples, and it is a matter of
relying on the scientists and the experts to tell us what
conclusions they can draw. That is another reason why the
admissability bills are so important, because to change the legal
standard for admissability is the key to using this kind of
evidence.
Number 080
REPRESENTATIVE GREEN understood we will be working on that.
Number 087
REPRESENTATIVE TOOHEY asked about Section 2, under (b), where it
states that a person convicted in the state, of a crime against a
person shall have a blood sample drawn. That does not include
allowing a DNA sample to be used to convict that person, does it?
Number 091
MR. GUANELI replied that was correct. This bill only establishes
a database of samples from people who have already been convicted
once, and its usefulness is if that person commits a crime in the
future. Then it is a matter of deciding if this evidence can be
used in the prosecution for a future crime.
Number 102
REPRESENTATIVE TOOHEY asked if we were assuming DNA is being used
to convict him, originally of a crime.
Number 106
MR. GUANELI stated this does not assume that DNA had anything to do
with the initial conviction.
Number 107
REPRESENTATIVE TOOHEY thanked Mr. Guaneli.
Number 114
REPRESENTATIVE VEZEY asked when a person is convicted, and assuming
the person is incarcerated when the sample is being taken, if these
people have the right to reject being fingerprinted, having blood
samples taken, or other procedures of incarceration.
Number 118
MR. GUANELI said when you are talking about a test such as
fingerprinting which is not in any way intrusive, just rolling your
finger on an ink pad or having a snapshot taken, they probably do
not. When you start talking about other kinds of procedures where
blood is being drawn, perhaps against their will, that raises
another question. The courts upheld that for investigative
purposes fingerprints and photographs can be taken. We can make
people blow into a machine if they have been driving on the road,
but when it comes to other types of more intrusive testing such as
drawing blood or pumping your stomach; that is where the courts
really draw the line on the ability of the government to just do it
without some authorization by the legislature, or some
authorization by a court pursuant to a warrant.
MR. GUANELI told of a case where some police wanted to have someone
operated on to remove a bullet to test it for forensics. It is a
matter of how intrusive this kind of procedure is. For some
people, getting a needle stuck into them is something they are
afraid of, there are some inmates who really kick up a storm every
time they are to be searched, but we have internal procedures that
allow prison officials to search, but it still causes problems.
The more authority we have to do this, the better off we are.
Number 161
REPRESENTATIVE VEZEY noted we provide all kinds of medical caring,
including screening, for people who are incarcerated. He asked if
there is anyone in our prisons who has not had blood samples taken?
Number 170
MR. GUANELI did not know. They do some routine screening to allow
for tests. There are some things Corrections can do to prevent the
spread of contagious diseases throughout the prison, but other
states that have done it, have done it by legislation. He thought
we would be safer doing it by legislation. He did not know if we
would ultimately prevail if we decided to do it without
legislation. At least one other state says that if an inmate
refuses to have their blood drawn, they can be disciplined for it,
and lose good time, and ultimately stay in jail longer. He
believed that procedure has been upheld, because there was a
statute in place that said, "Your blood is to be drawn," they
refused to do it, they kicked and screamed and so they were able to
discipline him for it. I can see something like that having to be
promulgated by regulation by Corrections in order to make this
effective. Again, to the extent that they have statutory
authority, we are a lot safer in doing that.
Number 205
REPRESENTATIVE FINKELSTEIN asked the difference between the
original bill and the Committee Substitute. There was a provision
where the Department of Public Safety could provide expert
testimony in court on DNA evidentiary issues, and that was taken
out. He asked if Mr. Guaneli had any comment on that.
Number 210
MR. GUANELI said it was removed at his request after he spoke with
Representative Parnell's office. Providing expert testimony is
governed by rules, and whether or not the person has sufficient
qualifications to be qualified as an expert. There is not a
necessity to have a specific statute that says Public Safety can
provide it. In other words, if Public Safety has as expert and
that expert qualifies, they can testify. What we have found
recently, is that some defense attorneys are simply giving
subpoenas to crime lab chemists, and in essence, trying to get free
expert witnesses. In other words, they are state employees, they
figure they do not have to pay them an expert witness fee, and so
they ask them to come and testify on their behalf. If there was a
statute that allowed Public Safety, that made reference to that,
they might have a greater claim to that. It is simply a matter of
preserving the crime labs resources, and not having their chemists
flying all over the state to provide free expert testimony. That
was his reason for asking that to be deleted.
Number 240
REPRESENTATIVE FINKELSTEIN asked if there was anything under the
current court rules that prohibits trying to get a person from
there into the courtroom?
Number 242
MR. GUANELI said absolutely not. There are court rules on expert
witnesses.
Number 246
REPRESENTATIVE FINKELSTEIN asked who could give us an estimate on
the number of people in the category of violent felons who go
through the system annually. We have an estimate from the
Department of Public Safety that there are 300 convicted sexual
offenders that go through. If you extend that to include violent
offenders, do you have any idea what the number would be?
Number 260
MR. GUANELI said the statistics that they have show over the last
few years, between 200 and 250 felons are convicted every year in
the sexual offense area, and he thought they just rounded it up to
300. That total number, if you add on violent offenders, goes up
to about 600 or 700, a year, who are convicted of a felony sex
offense or a felony offense against a person.
Number 270
REPRESENTATIVE FINKELSTEIN asked how those figures would change if
you included robberies.
Number 272
MR. GUANELI said robberies would be included in there.
Number 274
REPRESENTATIVE FINKELSTEIN expressed astonishment that there are
only that many robberies and assaults.
Number 278
MR. GUANELI said as far as felony convictions, there are not a lot
of people charged with robbery. The same people commit multiple
robberies, and by the time we get them, it ends up being one case.
It probably clears several robberies that have occurred.
Number 284
REPRESENTATIVE GREEN moved that the committee adopt work draft for
CSHB 27 9LS0148/F as the working draft.
Number 305
Hearing no objection, CHAIRMAN PORTER announced Version F as the
working draft.
Number 310
REPRESENTATIVE VEZEY questioned paragraph (b), page 2, line 8.
Number 320
MR. GUANELI did not have a specific opinion on that. It seems to
be a policy judgement that blood drawn for this purpose should be
limited to criminal prosecutions and any statistical analysis that
goes along with that. If it gets expanded beyond that, you could
do all sorts of testing for any number of infectious diseases. It
could be used in civil cases, in paternity cases, and in child
support cases, but it seems to me that those are really policy
questions rather than legal ones. This is a choice to limit this
to a specific purpose and that is for criminal investigation and
prosecution.
Number 340
REPRESENTATIVE VEZEY asked how many blood samples are currently
required, and how many samples we are going to take from an
individual?
Number 345
CHAIRMAN PORTER noted we do have other requirements, in statute,
for some testing.
REPRESENTATIVE VEZEY asked if they are all going to take different
samples for each test.
CHAIRMAN PORTER stated the intent of this bill is to give statutory
authority for the criminal prosecution purpose. He would support
this authority, and not just assume that we had that authority.
Recognizing a lack of authority has happened, for example, if we
took a blood sample from a convicted rapist for medical purposes in
an institution and then used it as a comparative for a DNA sample,
at the very minimum, they would spend three weeks of time arguing
the point that we did not have the authority to make the comparison
because it was taken for other purposes. This specifically says
you may use these samples for criminal prosecutions. It may be
unnecessary, but then again, it may be helpful.
Number 373
REPRESENTATIVE VEZEY made the point that a blood sample, taken
under this section, may be used only once. It seems that we are
tapping this individual multiple times, when it would seem that one
sample might be more practical.
Number 383
CHAIRMAN PORTER said the blood that we are going to be tapping
under this bill, is going to a state crime lab for a specific
purpose, and this would preclude the desire of medical people to do
research on genetics or something.
Number 390
REPRESENTATIVE TOOHEY asked if there would be any reasoning behind
addressing the issue of a statutory provision for HIV testing that
was passed last year. Could the same blood be used for DNA
testing?
Number 397
CHAIRMAN PORTER said that a sample of it could be, but it would be
diverted. One would go over to HIV testing, but once it gets over
to the crime lab, it would be used for other things.
Number 398
REPRESENTATIVE TOOHEY asked if it would save the state any money to
have the ability to draw the blood for both at the same time.
CHAIRMAN PORTER did not know of anything that would preclude it.
Number 407
REPRESENTATIVE FINKELSTEIN noted that part of the confusion is in
what tapping someone actually means. In concept, you can get more
than one sample out of the same tap. You just keep sticking little
vials in, and keep filling them up.
CHAIRMAN PORTER made the comparison to how it is done when you give
blood. He then asked if there were others wishing to testify
either via teleconference, or in the audience, on the CSHB 27
(JUD).
Number 419
LAUREE HUGONIN, EXECUTIVE DIRECTOR, THE ALASKA NETWORK ON DOMESTIC
VIOLENCE AND SEXUAL ASSAULT, had a couple of brief comments to lend
their support to the registration of DNA. The network is
supportive of providing measures that assist the swift and accurate
apprehension and conviction of sex offenders and we believe
requiring the DNA registration will assist in that effort. Experts
debate the percentages of recidivism for sex offenders. Some will
say 50, some 60, some 80. But what they do not debate, is the fact
that there is recidivism, so a sex offender is more likely to re-
offend and commit other sex offenses. We think also, the
requirement of registration of their DNA would give them cause to
think; maybe it would be a deterrent.
MS. HUGONIN said they also support the accessibility to law
enforcement of as many identifiers as possible in trying to work
their cases and provide for the apprehension of the sex offender,
and believes that, beginning now, together the DNA fingerprints
will give them a wider pool in order to help with that work. We
would also support expanding the bill to include persons convicted
of felony crimes against persons, for a little different reason
than what was stated earlier, and that is because often times, or
sometimes, people who have committed sex offenses are not
necessarily charged with that sex offense. They have other charges
that actually get brought forward and they get convicted of. She
thanked the committee for the opportunity to testify.
Number 480
CHAIRMAN PORTER stated for Ms. Hugonin's information, the committee
substitute they had adopted provides for this sample taking from
anyone convicted of a violent felony, including sex offenses. He
suggested amending page 2, line 19. He noted that we usually do
not do this, but it is so simple. He asked Representative Parnell
to state it.
Number 486
REPRESENTATIVE PARNELL described the amendment. Page 2, line 19,
after the word "equipment" insert "and typing methods." On the
same line, change the word "is" to "are."
Number 490
REPRESENTATIVE DAVIS made the motion to amend as described.
Hearing no objection, CHAIRMAN PORTER announced Version F of the
bill was amended.
REPRESENTATIVE FINKELSTEIN expressed concern that the costs of this
now are probably in the area of $100,000. The fiscal note was
$50,000, and we have at least doubled the number of people to be
put in the system, so that brings it up to $100,000. It is not
completely clear what all these costs are going to be. That is
probably a minimal fiscal note. There is probably some value in
setting up a system that all of these folks are going to go into,
even though some of them have very limited utility, such as a
robbery. It would be nice to have some discretion to get the ones
that the prosecutor feels may have some chance of being involved in
a crime in the future. That could make this system useful. There
was reference made by Mr. Guaneli, or some previous speaker, to the
idea of some discretion of the prosecution. If we are looking for
a way to keep the cost to the state down, that is the way to do it;
to include all of the sexual crimes as in the original bill, and
then add the others under the discretion of the prosecution.
REPRESENTATIVE GREEN asked the sponsor about the fiscal notes being
given late. He asked if they were applicable to the committee
substitute?
Number 525
MR. GUANELI said Lee Ann Lucas from the Department of Public Safety
could properly address that.
Number 530
LEE ANN LUCAS, LEGISLATIVE LIAISON, DEPARTMENT OF PUBLIC SAFETY,
said that with the committee substitute, from talking the
Department of Corrections, who we would RSA money to do the
collection of the samples, we would be looking at approximately
600, versus 300 with the expansion to felonies of crimes against
persons. So that would increase, under the laboratory services
fiscal note, the contractual would increase from 4.4 to 8.8 for the
Department of Corrections to correct the additional 300 samples.
Also for R & I there would be an additional amount for flagging the
additional 300 records. Where we had 3000 for personal services
under the Alaska Criminal Records and identification fiscal note,
with the change, that would now be 6000 dollars, for a total of
11,000. Those would be the two changes. The rest are start-up
costs, as reflected in the original fiscal notes.
Number 550
CHAIRMAN PORTER asked if the sponsor of the bill, or any member of
the committee had any comment on the suggestion made by
Representative Finkelstein.
Number 555
REPRESENTATIVE PARNELL asked Representative Finkelstein if he could
repeat his suggestion. Was it to take blood samples from sex
offenders, and then at the prosecutors discretion for the rest?
Number 560
REPRESENTATIVE FINKELSTEIN said he felt the costs were less than he
had anticipated in the new description. He was trying to find some
middle ground between the original bill and the committee
substitute in the amount of money necessary by leaving some
discretion to the prosection on when to require the samples.
Number 568
REPRESENTATIVE PARNELL thought that would defeat the bill to some
extent, because those people who are convicted of violent crimes
against persons are the ones who end up murdering people later, or
committing sex offenses later, and so it would be hard for a
prosecutor to make a determination on who he or she thinks is going
to do that. It is better just to build a database, especially when
we are talking in the numbers that we are, of offenders and of
dollar amounts. It just makes sense to have the database in place.
Number 580
CHAIRMAN PORTER thought the testimony we received like that was
from Mr. Miller, that a statute like that was being considered in
Florida. There are some constitutional equal treatments that jump
out at me, so that I would not want to just throw it into the bill
without having those kinds of things answered.
Number 586
REPRESENTATIVE FINKELSTEIN did not offer an amendment on it, but
stated it is a question of diminishing returns. There is even a
sub-portion of the people who commit jay-walking who are eventually
going to commit a violent crime someday, too. It would be nice to
have all them on the register as well. It is just diminishing
returns as we go down the line.
Number 590
CHAIRMAN PORTER said with that in mind, burglary was a
consideration, because sometimes burglars cut themselves going in
and out of residences, and there are always potentials for violent
crimes in burglary, because they do not really know if somebody is
home or not; but for the considerations you are describing,
everyone involved in discussing this drew the line where we did.
Number 598
REPRESENTATIVE FINKELSTEIN agreed that the value of it may exceed
the costs.
Number 602
REPRESENTATIVE VEZEY proposed the deletion of paragraphs (a), (c),
(d), and (e). They are not of any valuable purpose to the bill.
Paragraph (a) is not a really productive paragraph. Paragraphs
(c), (c), (d) and (e) try to codify intelligent behavior on the
part of our bureaucrats. That is a waste of time when we are
trying to talk about something as complex as this is. We are
talking about a program that has to be administered by experts. In
order for us to try to give guidelines for these experts, it is
really a little presumptuous on our part.
Number 617
CHAIRMAN PORTER said the comparison between this form of
identifying evidence and fingerprint comparison evidence is
analogous to the extent that the technology of fingerprint
identification now is such that through computer comparisons, you
can compare a single latent fingerprint picked up at a crime scene
with literally millions of single known prints taken from subjects.
There are a number of different computer applications to provide
that service, and if the Anchorage Police Department used type A,
the state used type B, and the FBI used type C, none of that
information could go back and forth. That is what paragraph (c)
requires to be done. In this case there is some justification.
Number 635
REPRESENTATIVE GREEN concurred and thought that while we do want to
make this as simple and straight forward as possible, there seems
to be sometimes a piece of legislation not being properly
interpreted by an agency, which then promulgates regulations that
do not really address what was originally intended by the
legislature. Where we can keep that to a minimum of going asunder
on a rather new and unique scientific issue, perhaps the additional
wording here would be in order.
Number 646
CHAIRMAN PORTER asked if there was objection to the motion made to
delete the paragraphs.
Number 648
REPRESENTATIVE BUNDE sympathized with the philosophy of having some
awareness of the reality of defense attorneys looking for i's left
un-dotted and t's left uncrossed, yet he felt the verbiage
necessary by the system that we have.
Number 660
REPRESENTATIVE PARNELL vigorously opposed the amendment. The
sections proposed to be deleted were provisions that the experts,
George Taft, in particular, was the one who suggested language
changes here, but as Mr. Miller indicated we need to provide the
authority, especially when we are dealing with a constitutional
issue like the right to privacy. We need to set up, provide the
authority, and the reason for doing it. They can't just walk in
and stick a needle in somebody without the authority and reason
behind it. We have a significant interest, as a state, in doing
this for these offenders based on the high recidivism rate, and our
willingness and desire to deter this kind of activity. To pass
this amendment is to gut the entire bill, and he felt the committee
should vote "no."
Number 674
CHAIRMAN PORTER said that technically the amendment motion was not
properly in front of us because there was a motion to move the
bill. He asked Representative Vezey to consent to remove his
motion.
Number 678
REPRESENTATIVE VEZEY asked a few questions regarding committee
proceedings.
Number 690
CHAIRMAN PORTER explained the proceedings fully. Once that was all
straightened out, he asked if there were any other points of
discussion on the motion to move this bill as amended. Hearing
none, the bill was moved.
HJUD - 1/25/95
HB 26 - DEPOSITIONS IN CRIMINAL CASES
CHAIRMAN PORTER then announced HB 26 would be the next bill before
the committee.
REPRESENTATIVE VEZEY left early.
Number 725
REPRESENTATIVE TOOHEY asked if she could make a motion to make
Version C the committee's work draft.
Number 730
CHAIRMAN PORTER asked if there was objection. Hearing none, the
committee substitute was adopted.
REPRESENTATIVE PARNELL, sponsor of the bill, came before the
committee. He said under the current rule 15, the court can order
depositions in a criminal case upon good cause being shown. That
is a weak standard and permits the taking of numerous depositions
in cases where the victim can be subjected to harassment of the
defense. It is ripe for abuse, at that point. He read part of a
speech by Ed McNally to sum up his reason for proposing the bill:
The Alaska Rule 15 is far more liberal (referring to the federal
rule 15), permitting a deposition of any victim or witness whenever
good cause is shown. In the practice of the criminal courts in
Alaska, Alaska Criminal Rule 15 has become a tool of aggressive
harassment of witnesses, victims, and especially rape victims in
criminal cases. The Victims Rights Act says that in advance of
trial, rape victims do not have to talk to the lawyer for the man
who raped them. Within Alaska, Criminal Rule 15 is routinely used
by defense counsel to obtain a court order requiring rape victims
to submit to a grueling and formal deposition with them. Under the
Federal Rule 15, it says that depositions can be taken only under
exceptional circumstances, rather than "good cause shown"
standards. His first draft of the bill was strictly the federal
rule. After discussions with the Department of Law, he backed off
from that and submitted the committee substitute, Version C, which
provides a standard very similar to the federal rule with respect
to this special circumstances test. In the first portion, it says
that the deposition of a prospective witness may be taken by either
party upon notice as provided in B of this rule; if the court finds
by clear and convincing evidence that, one, the witness will not be
present to testify at trial, or two, due to exceptional
circumstances, the deposition is necessary to prevent a failure of
justice. Essentially, what we are doing at the Department of Law's
suggestion, is changing a portion of the Alaska rule. We are not
throwing out the entire rule and all the cases that have come in
under the rule. We are just changing the standard under which
depositions can be taken.
REPRESENTATIVE PARNELL went on to say that on page 2 of the work
draft, Section 2 changes the rule so that courts will preside over
depositions as well. This is done to give them some measure of
control over the proceedings. In short, changing the wording of
the Alaska rule to be parallel to the federal rule, is a warranted
change, given the current use of depositions and abuse of
depositions. He urged the committee's support of HB 26.
Number 790
CHAIRMAN PORTER asked if there were questions of the sponsor.
Hearing none, he then requested Mr. Guaneli to come forward to
testify.
Number 795
MR. GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW, stated that often times in a criminal case, a
rape victim has given a statement to doctors at the hospital, has
given a statement to the police which is recorded and transcribed,
has given a statement to the Grand Jury, which is recorded and
transcribed, and all that information goes to the defense. Many
times, if the defense can in some way find out the victim is not
going to cooperate, or does not want to testify, the case may
simply go away. Mr. Guaneli made it clear that he was not
suggesting that defense attorneys ask for depositions to
intentionally intimidate victims, but that is the effect of it.
Getting in a small enclosed room, sitting across from the man who
raped you is a terrifying experience. There is no judge present,
there is just a court reporter who has another tape recorder going,
and that statement is then recorded and transcribed. Throughout
each of these statements, subtle details of the defense may change.
Every time there is an additional statement taken, it is additional
evidence that can be used against the victim as cross examination
material.
MR. GUANELI went on to say that in criminal cases, unlike civil
cases, the defense already gets a large amount of material to know
about the prosecution's case. For that reason, historically,
depositions have not occurred in criminal cases. Unfortunately,
some judges in Alaska, not all of them by any means, but some, have
been very loose about allowing depositions in criminal cases,
particularly in rape cases. This bill is intended to clamp down on
that practice. If there is a good reason why a deposition ought to
be taken, if the witness is dying or is going to be leaving the
state, or if there are exceptional circumstances, but for it to be
a routine practice seems inappropriate.
MR. GUANELI said the other change occurs on page 2, Section 2.
This bill says that if a judge is going to order a deposition, let
the judge preside over that deposition. It should be done in a
courtroom, in a closed proceeding with a measure of decorum, so the
judge can protect that witness against an aggressive cross
examination. In a criminal case, the prosecutor is not really the
victim's lawyer. Victims often do not have the money to go out and
hire a lawyer to protect them. In a normal deposition, the other
attorney can raise legal objections, but the witness has to answer
the questions. It is a good and helpful procedure to have the
judge preside over that, in the rare circumstance that it should be
necessary.
Number 843
REPRESENTATIVE BUNDE asked if we would end up with a bottleneck,
just because we do not have enough courtrooms available.
Number 845
MR. GUANELI said it depends on how many of these are ordered by the
judges, but he thought this should be a rare occurrence. It does
not take up a lot of court time. It may advance the course of
litigation, rather than delaying things.
Number 849
REPRESENTATIVE FINKELSTEIN was not clear on the necessity of this
kind of approach. The impression he had from talking with defense
attorneys is that these depositions are not granted often in the
first place.
TAPE 95-2, SIDE A
Number 000
REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli if he has actually
seen a large number of these cases.
MR. GUANELI noted that it is not all judges, it is just certain
judges in certain areas of the state. In many areas of the state,
it is a rare occurrence and this will not change that, but in those
areas of the state where for one reason or another the judge is
applying a looser standard, and with language such as "for good
cause," and good cause is a pretty low standard, and it depends to
a large extent on the judge's own subjective view about what that
is. That can be used more than it should in some areas, so it
varies by region and by judge.
Number 017
REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli if he was aware of
circumstances where there are more than a handful of these
depositions occurring, whether it is five or ten in a year or
something like that.
Number 021
MR. GUANELI said that was correct.
Number 022
CHAIRMAN PORTER noted the inclusion of Section 2, page 2, which
says that the court shall preside over a deposition, and orders
under (a). The rule goes on to say that parties can agree on some
other form of deposition. He had an amendment prepared, if Mr.
Guaneli felt there would be any kind of problem there, that would
say, "nor does it preclude depositions taken or used under (g) of
this rule."
Number 024
MR. GUANELI said there are cases where the victim is not going to
be the witness in the deposition. It may be perfectly appropriate
to have it be a simple matter of agreeing whether it is going to be
in front of a court reporter or in a room off somewhere, and you
tape your testimony.
Number 031
CHAIRMAN PORTER said his question is whether or not this can happen
under this current wording of the bill.
Number 036
MR. GUANELI said that no, he was satisfied.
Number 040
REPRESENTATIVE BUNDE moved that CSHB 26 (JUD) be passed from the
Judiciary Committee, with individual recommendations.
Number 045
CHAIRMAN PORTER added, and fiscal notes as attached. Hearing no
objection, the bill was moved.
ADJOURNMENT
The House Judiciary Committee meeting was adjourned at 2:50 p.m.
| Document Name | Date/Time | Subjects |
|---|