Legislature(1995 - 1996)

01/30/1995 01:12 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               HOUSE JUDICIARY STANDING COMMITTEE                              
                        January 30, 1995                                       
                           1:12 p.m.                                           
 MEMBERS PRESENT                                                               
 Representative Brian Porter, Chairman                                         
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Bettye Davis                                                   
 Representative Al Vezey                                                       
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
 MEMBERS ABSENT                                                                
 COMMITTEE CALENDAR                                                            
 HB 25:"An Act revising Rule 16, Alaska Rules of                              
 Criminal Procedure, relating to discovery and                                 
 inspection in criminal proceedings, to adopt                                  
 the comparable federal rule."                                                 
   HEARD AND HELD                                                              
 *HB 103:"An Act relating to the sale of correctional                         
 industries products and services."                                            
 SCHEDULED BUT NOT HEARD                                                     
 * HB 19:"An Act relating to the definition of 'fault'                        
 as that term is used for the purposes of                                      
 determining the liabilities of parties in                                     
 civil actions, setting limitations on civil                                   
 liability, and authorizing the award, in                                      
 conformance with applicable court rule, of                                    
 attorney fees in civil actions."                                              
   SCHEDULED BUT NOT HEARD                                                     
 WITNESS REGISTER                                                              
 DEAN GUANELI, Assistant Attorney General                                      
 Criminal Division                                                             
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK 99811-0300                                                         
 (907) 465-3428                                                                
 POSITION STATEMENT:  Testified in favor of HB 25                              
 JAMES H. MCCOMAS, Criminal Defense Attorney                                   
 500 L Street                                                                  
 Anchorage, AK 99501                                                           
 (907)  258-0704                                                               
 POSITION STATEMENT:  Testified against HB 25                                  
 PREVIOUS ACTION                                                               
 BILL:  HB 25                                                                
 SHORT TITLE: CRIMINAL DISCOVERY RULES                                         
 SPONSOR(S): REPRESENTATIVE(S) PARNELL, 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                               
 01/27/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 01/27/95              (H)   MINUTE(JUD)                                       
 01/30/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HB 103                                                               
 SPONSOR(S): REPRESENTATIVE(S) KOTT, Bunde                                     
 JRN-DATE     JRN-PG                  ACTION                                   
 01/20/95       101    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/20/95       101    (H)   JUDICIARY, FINANCE                                
 01/30/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HB 25                                                                
 SHORT TITLE: CRIMINAL DISCOVERY RULES                                         
 SPONSOR(S): REPRESENTATIVE(S) PARNELL, 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)   JUDICIARY, FINANCE                                
 01/18/95        75    (H)   COSPONSOR(S): GREEN                               
 01/19/95        89    (H)   COSPONSOR(S): BUNDE                               
 01/27/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 01/27/95              (H)   MINUTE(JUD)                                       
 01/30/95              (H)   JUD AT 01:00 PM CAPITOL 120                       
 ACTION NARRATIVE                                                              
 TAPE 95-5, SIDE A                                                             
 Number 000                                                                    
 The House Judiciary Standing Committee was called to order at 1:12            
 p.m. on Monday, January 30, 1995.  A quorum was present.  CHAIRMAN            
 BRIAN PORTER acknowledged the presence of Representatives Bunde, B.           
 Davis, Green, Toohey, and Vezey.  Representative Finkelstein                  
 arrived late (at 1.37 p.m.).                                                  
 HJUD - 01/30/95                                                               
 HB 25 - CRIMINAL DISCOVERY RULES                                            
 CHAIRMAN PORTER stated that HB 25 would be heard.                             
 Number 060                                                                    
 DEPARTMENT OF LAW, explained the new changes in the proposed                  
 committee substitute for HB 25.  He stated the approach was to                
 provide some mandatory sharing of information on both sides.  If              
 the defense wants to opt in to give additional information, then it           
 receives additional information from the prosecution.  He realized            
 this rule may be in the process of being amended by the Supreme               
 Court.  Therefore, it may be appropriate to incorporate some of Mr.           
 Salemi's adjustments to the rule that the Supreme Court is                    
 MR. GUANELI described mandatory discovery, on page 1, as                      
 information that tends to negate guilt, and as the minimum                    
 constitutional standard.  Language on lines 4 and 5, as already               
 appears in the Criminal Rules, would be mandatory.  There has been            
 a court proceeding that has been recorded, and that minimal amount            
 of information ought to go to the defense.  Lines 6 and 7,                    
 describing mandatory discovery, that information required by                  
 statute now, and should be provided as well.  Lines 8, 9, 10 and 11           
 (also from the current rule) states anything obtained from the                
 defendant; i.e., books, diaries, photographs.  Lines 12 and 13                
 requires mandatory information to be turned over to the prosecutor.           
 Line 14 is a truncated version of what the Criminal Rules Committee           
 recommended go to the Supreme Court.  The rest of what they                   
 recommended appears on page 6, lines 12 - 19.                                 
 MR. GUANELI continued, saying lines 18 and 19 provide for the                 
 defendant to participate in non-testimonial identification                    
 procedures.  These are set out in the current discovery rule.  This           
 includes things like photographs of the defendant, fingerprints,              
 appearing in line-ups, and handwriting samples.  On page 2, lines             
 20 and 21, the statutory requirements are made mandatory.  On lines           
 22, and on to the top of page 23, is a requirement or suggestion by           
 the Criminal Rules Committee, that if the defendant's attorney has            
 come into the possession of any physical evidence, that attorney              
 has an obligation to turn that over to the prosecution, or to the             
 police.  It is a matter of the attorney's ethical obligations to do           
 that anyway.  The Criminal Rules Committee thought it ought to be             
 set out in the rule.  Often times, defense attorneys come into the            
 possession of murder weapons, cash, or bloody gloves, and they have           
 an obligation to turn those over to the prosecution.  The courts              
 have said in order to preserve the confidential communications                
 between attorney and client; if the attorney got that from his                
 client, he does not have to tell the police where he got it, he               
 just turns it over.  If he got it from somewhere other than his               
 client, he has to tell where he got it from.  It is a matter of               
 ethics, but this sets out a procedure for that to be done, and this           
 is something the Rules Committee recommended.                                 
 MR. GUANELI then explained page 3, line 3, which states once you              
 have exchanged this mandatory information, the defense has an                 
 opportunity to say whether he wants more information.  In order to            
 get it, he has to turn over additional materials to the prosecutor.           
 Line 4 requires the defendant to file written notice, personally              
 executed by the defendant.  An attorney could do this without                 
 consulting the client, and hence, avoids the risk that an attorney            
 might waive client's constitutional rights without consulting the             
 defendant.  This requires the defendant to personally agree to do             
 that.  It is a good safeguard.  It requires the attorney to inform            
 the client of what is involved.  Line 15, subsection (b), lists               
 additional information the defendant can get, basically names and             
 addresses of people who know about the crime, and any statement               
 given by them.  Line 28's language, which comes from the Criminal             
 Rules Committee draft says, "The prosecutor shall inform the                  
 defendant of the names and addresses of expert witnesses who have             
 worked in connection with the case."                                          
 Number 330                                                                    
 CHAIRMAN PORTER asked Mr. Guaneli if page 2, line 8 included                  
 statements made by the accused.                                               
 MR. GUANELI said that it did, yet it only applies to tangible                 
 Number 345                                                                    
 REPRESENTATIVE JOE GREEN asked what provision would protect an                
 incompetent defendant from making this decision to give over                  
 Number 355                                                                    
 MR. GUANELI said the court would stop proceedings until the                   
 defendant were competent to assist his attorney in proceedings.               
 That question is determined by a court on an individual basis; in             
 the same way that a defendant is determined to be qualified to                
 understand the plea of guilty, not guilty, or no contest.  Page 4,            
 lines 11, 12, 13, and 14 had a provision which has moved up to what           
 is now mandatory disclosure.  This requires information not                   
 obtained by the defendant, to be disclosed.  He felt the language             
 should remain, without the qualifier, "...which belonged to the               
 accused..."  He felt that language could be replaced by "... which            
 the prosecuting attorney intends to use in the hearing, and which             
 were not previously disclosed to the defendant."                              
 Number 435                                                                    
 CHAIRMAN PORTER suggested the language, "...other than those                  
 obtained from..."                                                             
 Number 440                                                                    
 MR. GUANELI thought that was a good choice of wording.                        
 Number 445                                                                    
 REPRESENTATIVE CYNTHIA TOOHEY asked if it should say "... obtained            
 from or belonging to..."                                                      
 CHAIRMAN PORTER and MR. GUANELI both agreed.                                  
 At 1:37 p.m. Representative Finkelstein arrived.                              
 Number 450                                                                    
 MR. GUANELI explained that an expert witness statement would be               
 appropriate information to have in the materials being handed over            
 to the prosecution.  Currently, the prosecution does not have to              
 turn over its legal research materials and theories.  The current             
 rule does not have something similar for the defense.  He felt it             
 appropriate that both be equivalent, so they added a provision                
 saying the defense does not have to turn over its legal research,             
 theories, or opinions.  From the prosecution's standpoint, the most           
 critical information the defense has is who the defense witnesses             
 are going to be and what they have told the investigators.  This              
 information is something the defendant agrees to give up when                 
 opting to get additional information from the prosecution.  This is           
 comparable to the language used under the prosecution's obligation.           
 On page 7, at the top, there should be a qualifying phrase in the             
 requirement to turn over physical evidence.  Physical evidence does           
 not include paperwork under Criminal Rule 16A1(ii)(dd).                       
 Number 585                                                                    
 REPRESENTATIVE CON BUNDE asked if deoxyribonucleic acid (DNA)                 
 information would be appropriate to add to the list.                          
 Number 595                                                                    
 MR. GUANELI said the list includes the taking of a blood sample, so           
 that is where the DNA information would be obtained from.  He noted           
 page 9 had a lot of provisions removed from it, which brings the              
 rule back to the way it read three years ago.  The particular                 
 provision says anything a defendant gets, that the prosecution or             
 police have, has to remain in the exclusive possession and control            
 of the attorney.  We do not want police reports, and witness                  
 statements given out to defendants and spread throughout the                  
 community.  That rule, written three years ago, is amended by the             
 language proposed here for deletion now.  The rule now reads that             
 the only things you have to keep in your possession are these few             
 things:  Criminal history records, psychiatric exams, adoption                
 records, presentence reports, et cetera.  It specifically allows              
 police reports and witness statements to be given out; and what has           
 happened as a result, is police reports have been spread throughout           
 the community.  You can imagine what happens in small towns and in            
 prisons.  Everyone knows who is involved and who witnessed what.              
 Number 665                                                                    
 REPRESENTATIVE AL VEZEY asked who had a hand in the working of this           
 MR. GUANELI responded that Representative Parnell's office had been           
 consulted with on all the issues, and the primary drafter was Mr.             
 Jerry Luckhaupt.  Their chief appellate attorney also had input,              
 and so did the Criminal Rules Committee, a group of about 15                  
 lawyers and judges from around the state, appointed by the Supreme            
 Number 685                                                                    
 REPRESENTATIVE VEZEY asked why the Criminal Rules Committee did not           
 change the rule.                                                              
 MR. GUANELI explained that the Criminal Rules Committee is                    
 historically made up of people who are either public defenders,               
 defense attorneys, or are former public defenders or former defense           
 attorneys; and the number of prosecutors has always been greatly              
 outnumbered by the number of defense attorneys on the committee.              
 He said they have been trying to get provisions such as these                 
 passed through that committee for the last three years, to no                 
 avail.  Unless that committee makes a recommendation to the Supreme           
 Court to change its rule, the change is unlikely to occur.                    
 Number 705                                                                    
 JAMES H. MCCOMAS, CRIMINAL DEFENSE ATTORNEY, testified via                    
 teleconference from Anchorage.  He said since 1988, he has served             
 on the Criminal Jury Instructions Committee, and it is not biased.            
 He felt that the discovery procedures at trial should be balanced,            
 because right now, it favors the defense.  Historically, the                  
 procedural imbalances in the criminal justice system have                     
 explicitly been designed to provide some sort of balance the other            
 way, protecting the defense, given the incredible advantages the              
 prosecution has, that never get talked about, when we focus on                
 something like discovery, out of context.  The advantage they have,           
 that will end up playing into the provisions of these bills, is in            
 investigative resources.  They have the police department, the                
 State Crime Lab, and interagency cooperations.  Another                       
 disadvantage to the defense is the discretion the prosecution has             
 in charging a case, the defendant is there because an accusation              
 has been made, he does not initiate the process.  He is in court to           
 face a charge.  It is not too much to expect, that when a citizen             
 is called into court with that kind of allegation made against him            
 or her, they can expect that they are going to have some sort of              
 substantial information about why they are there; what the                    
 allegations are, so they can begin to prepare their defenses.                 
 MR. MCCOMAS said most of what is being proposed here would violate            
 the privilege against self-incrimination.  Instead of balancing,              
 what they are proposing to do, is penalize the defense, unless the            
 defendant agrees to waive the privilege against self-incrimination,           
 to get more information.  What this proposes, codifies a                      
 requirement that people give up their constitutional right.  They             
 do not have the legal right to make the defendant give up that                
 right.  They threaten the defendant with the fear of having to go             
 into trial by surprise.  The reason for these kinds of discoveries            
 which favor the defense, are simply meant to counterweight the                
 tremendous advantage of the prosection.                                       
 MR. MCCOMAS went on to explain there is a fundamental                         
 misunderstanding of criminal justice.  The federal discovery rule             
 requires disclosure of expert conclusions, intended to be used at             
 trial.  That is fair, if it is used to let them know they may need            
 an expert witness of their own; but the idea of turning discovery             
 into a tool, allowing the prosecution to hurt the defendant is not            
 TAPE 95-5, SIDE B                                                             
 Number 000                                                                    
 MR. MCCOMAS continued his opposition to the bill.  Rule 16, the way           
 it presently exists, gives the right to regulate discovery.  He               
 made known his interest and availability to work with the committee           
 on the subject.                                                               
 Number 115                                                                    
 CHAIRMAN PORTER asked if there were questions.                                
 Number 130                                                                    
 REPRESENTATIVE TOOHEY asked how certain the sponsor and Mr. Guaneli           
 were that this would not be overturned by courts.                             
 Number 140                                                                    
 MR. GUANELI said it certainly will be taken through the courts.               
 The question is whether it is going to be overturned.  He believed            
 anyone can give up constitutional rights if they feel it is to                
 their advantage to do so, as long as they are competent.  The                 
 current rule gives the defense much more information than is                  
 constitutionally required.  Limits and conditions can be put on               
 that.  On that basis, there is no reason to believe the courts                
 would not uphold that.                                                        
 Number 170                                                                    
 REPRESENTATIVE BUNDE understood there to be additional disclosure             
 beyond the constitutional mandates regarding disclosure and what              
 this bill is talking about.                                                   
 Number 185                                                                    
 MR. GUANELI confirmed that not only does this require the state to            
 provide what is constitutionally required, but within the mandatory           
 disclosure in this new rule, there are other things the state is              
 not required to disclose, but were given to them anyway, such as              
 access to grand jury materials.  The defense is given more than is            
 required, even if they do not opt in to these provisions.                     
 Number 200                                                                    
 CHAIRMAN PORTER stated the constitutional right referred to here,             
 is the right against self-incrimination.                                      
 Number 230                                                                    
 REPRESENTATIVE DAVID FINKELSTEIN asked what it would be like to               
 argue the case without this high level of information made                    
 available in a reciprocal agreement.                                          
 Number 240                                                                    
 MR. MCCOMAS said without access to witness statements, people would           
 be much less prepared for the trial.  This could lead to mid-trial            
 continuances and postponements, so they can adequately prepare for            
 a trial with new information.  Motions for mistrial are also                  
 possible, based on new information provided.  Since most criminal             
 cases do not go to trial, the restriction of the information the              
 prosecution shares with the defense is going to lead to an                    
 increased number of trials.                                                   
 Number 300                                                                    
 REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli why we would want to             
 require the defense to provide additional information to what they            
 are going to use at the trial?  Why ask for information that will             
 not be used at the trial?                                                     
 Number 310                                                                    
 MR. GUANELI answered that the defense will likely not use evidence            
 that may hurt them.  That will likely assist the prosecution.  The            
 more information available in the decision process, the better the            
 decision will be.                                                             
 Number 340                                                                    
 REPRESENTATIVE FINKELSTEIN thought it did not seem equal and fair             
 to the person defending him or herself.                                       
 Number 350                                                                    
 MR. GUANELI felt the overall societal concern is making sure we               
 have all the information in front of the jury or the judge.                   
 Number 370                                                                    
 REPRESENTATIVE FINKELSTEIN felt the basic theme of this bill is               
 philosophy.  It appears to be a prosecutor's dream come true.  He             
 asked if there was anyone involved in the preparation of this bill            
 who has any sort of defense point of view.                                    
 Number 405                                                                    
 CHAIRMAN PORTER said the Public Defender for the state made                   
 suggestions that were incorporated into this draft, so, yes, and we           
 just received testimony from Mr. McComas, who certainly represents            
 the defense side.                                                             
 Number 427                                                                    
 REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli if the committee                 
 appointed by the Supreme Court had made any recommendation to the             
 Supreme Court about this, and if there is a current process going             
 Number 445                                                                    
 MR. GUANELI said the Criminal Rules Committee has recommended a               
 number of changes currently being considered by the Supreme Court.            
 Those have been incorporated into this draft.                                 
 Number 480                                                                    
 REPRESENTATIVE FINKELSTEIN reconfirmed that information with Mr.              
 Number 508                                                                    
 MR. MCCOMAS stated that the Rules Committee explicitly considered,            
 and was unable to get a sufficient consensus, to propose the very             
 election of discovery choice that this bill proposes.  In three               
 areas, they have increased the explicit requirements of disclosure            
 on the defense, but they have not come anywhere near witness                  
 statements or witness lists.  They certainly have not said that the           
 defense has an obligation to turn over evidence of conviction.  To            
 be accurate, it is safe to say the committee itself could not                 
 ultimately agree to except the notion of two tiers of discovery;              
 one for those who are willing to waive in advance their                       
 constitutional rights, and one for those who are not so inclined.             
 Number 535                                                                    
 MR. GUANELI said Mr. McComas was correct, and he felt he had tried            
 to elude to that previously.                                                  
 Number 540                                                                    
 CHAIRMAN PORTER asked if the two tier option has been put into                
 effect in other states.                                                       
 Number 548                                                                    
 MR. GUANELI believed that Florida has such a rule, and that 99                
 percent of the defendants opt in to the system.                               
 Number 550                                                                    
 MR. MCCOMAS felt that there was inducement in those reciprocal                
 discovery situations.                                                         
 Number 590                                                                    
 CHAIRMAN PORTER suggested that the adjustments be put into a                  
 committee substitute so the bill could be heard again at a future             
 The House Judiciary Committee meeting was adjourned at 2:35 p.m.              

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