Legislature(1995 - 1996)

01/25/1995 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               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.              
                                                                               

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