Legislature(1995 - 1996)
02/22/1995 01:07 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE February 22, 1995 1:07 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 COMMITTEE CALENDAR *HB 138: "An Act relating to crime stoppers organizations; to information received by crime stoppers organizations and to the issuance of search warrants based upon that information; and amending Alaska Rule of Criminal Procedure 37 and Alaska Rule of Evidence 509." HEARD AND HELD *HB 52: "An Act relating to the admissibility into evidence of deoxyribonucleic acid (DNA) profiles in civil and criminal proceedings; amending Rules 702(a) and 703 of the Alaska Rules of Evidence to modify the rule relating to the basis or foundation for the admissibility of expert opinion testimony that is based on scientific evidence as it relates to DNA profile evidence; and amending Rules 401, 403, and 705 of the Alaska Rules of Evidence." PASSED OUT OF COMMITTEE *HB 108: "An Act relating to claims on permanent fund dividends for defaulted public assistance overpayments." PASSED OUT OF COMMITTEE HJUD - 02/22/95 *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." SCHEDULED BUT NOT HEARD (*First public hearing) WITNESS REGISTER REPRESENTATIVE GARY L. DAVIS Alaska State Legislature State Capitol, Room 420 Juneau, AK 99801-1182 Telephone: (907) 465-2693 POSITION STATEMENT: Sponsor of HB 138 PHIL NASH, Attorney Chairman of Central Peninsula (Kenai) Crime Stoppers 110 South Willow, No. 104 Kenai, AK 99611 Telephone: (907) 283-7514 POSITION STATEMENT: Testified in favor of HB 138 NORMAN STUARD P.O. Box 457 Soldotna, AK 99669 Telephone: (907) 262-1705 POSITION STATEMENT: Testified against HB 138 BOB KINTZELE, Legal Investigator P.O. Box 3313 Kenai, AK 99611 Telephone: (907) 283-9232 POSITION STATEMENT: Testified against HB 138 SUSAN ROSS, Paralegal P.O. Box 198 Kasilof, AK 99610 Telephone: (907) 262-5479 POSITION STATEMENT: Testified against HB 138 ARWIN SCHMIDT P.O. Box 3045 Kenai, AK 99611 Telephone: (907) 283-4594 POSITION STATEMENT: Testified against HB 138 SEYMOUR MILLS P.O. Box 51 Sterling, AK 99672 Telephone: Not Available POSITION STATEMENT: Testified against HB 138 LEONARD EFTA P.O. Box 353 Kenai. AK 99611 Telephone: (907) 283-7670 POSITION STATEMENT: Testified against HB 138 GERALD MCQUEEN P.O. Box 7048 Nikiski, AK 99635 Telephone: (907) 283-5619 POSITION STATEMENT: Testified against HB 138 BARBARA BRINK, Deputy Director Alaska Court System, Public Defender Agency 900 West Fifth, Suite 200 Anchorage, AK 99501 Telephone: (907) 264-4400 POSITION STATEMENT: Testified against HB 138 RANDALL BURNS, Executive Director Alaska Civil Liberties Union P.O. Box 201844 Anchorage, AK 99520 Telephone: (907) 276-2258 POSITION STATEMENT: Testified against HB 138 and HB 52 JAMES MESSICK, Crime Prevention Specialist Wasilla Police Department 290 East Herning Avenue Wasilla, AK 99687 Telephone: (907) 373-9077 POSITION STATEMENT: Testified in support of HB 138 WILLETT BUSHNELL, President Mat-Su Crime Stoppers P.O. Box 870355 Wasilla, AK 99687 Telephone: (907) 376-4195 POSITION STATEMENT: Testified in support of HB 138 CAPTAIN TED RUDDELL, Operations Commander Division of Fish and Wildlife Protection Department of Public Safety 5700 East Tudor Road Anchorage, AK 99507-1225 Telephone: (907) 269-5589 POSITION STATEMENT: Provided information on HB 138 DEAN GUANELI, Assistant Attorney General Department of Law P.O. Box 110300 Juneau, AK 99811-0300 Telephone: (907) 465-3428 POSITION STATEMENT: Provided information on HB 138 and HB 52 LISA MOCK, Legislative Aide Representative Joe Green State Capitol, Room 24 Juneau, AK 99811-1182 Telephone: (907) 465-4931 POSITION STATEMENT: Introduced CSHB 52 LINDA BRANCHFLOWER, Detective Alaska Peace Officers Association 1443 West Northern Lights Blvd. Anchorage, AK 99501 Telephone: (907) 277-0515 POSITION STATEMENT: Testified in favor of CSHB 52 ARVID BJORNTON, Sergeant Alaska Court System, Public Defender Agency Sexual Assault Division 900 West Fifth, Suite 200 Anchorage, AK 99501 Telephone: (907) 264-4400 POSITION STATEMENT: Testified in favor of CSHB 52 ELMER LINDSTROM, Special Assistant Office of the Commissioner Department of Health and Social Services P.O. Box 110601 Juneau, AK 99811-0601 Telephone: (907) 465-3030 POSITION STATEMENT: Testified in favor of HB 108 PREVIOUS ACTION BILL: HB 138 SHORT TITLE: INFORMANT RELIABILITY/CRIME STOPPERS SPONSOR(S): REPRESENTATIVE(S) G.DAVIS JRN-DATE JRN-PG ACTION 02/01/95 198 (H) READ THE FIRST TIME - REFERRAL(S) 02/01/95 198 (H) JUDICIARY 02/15/95 (H) JUD AT 01:00 PM CAPITOL 120 02/22/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 52 SHORT TITLE: DNA EVIDENCE IN CIVIL AND CRIMINAL TRIALS SPONSOR(S): REPRESENTATIVE(S) GREEN,Toohey JRN-DATE JRN-PG ACTION 01/06/95 34 (H) PREFILE RELEASED 01/16/95 34 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/95 34 (H) JUDICIARY, FINANCE 01/27/95 155 (H) SPONSOR SUBSTITUTE INTRODUCED- REFERRALS 01/27/95 156 (H) JUD, FIN 01/27/95 162 (H) COSPONSOR(S): TOOHEY 02/15/95 (H) JUD AT 01:00 PM CAPITOL 120 02/22/95 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 108 SHORT TITLE: USE PFD'S TO RECOVER WELFARE OVERPAYMENTS SPONSOR(S): REPRESENTATIVE(S) TOOHEY,Bunde JRN-DATE JRN-PG ACTION 01/20/95 102 (H) READ THE FIRST TIME - REFERRAL(S) 01/20/95 102 (H) JUDICIARY, FINANCE 02/22/95 (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 01/30/95 (H) MINUTE(JUD) 02/01/95 (H) FIN AT 01:30 PM HOUSE FINANCE 519 02/06/95 (H) JUD AT 01:00 PM CAPITOL 120 02/06/95 (H) MINUTE(JUD) 02/08/95 (H) JUD AT 01:00 PM CAPITOL 120 02/08/95 (H) MINUTE(JUD) 02/13/95 (H) JUD AT 01:00 PM CAPITOL 120 02/13/95 (H) MINUTE(JUD) 02/15/95 (H) JUD AT 01:00 PM CAPITOL 120 02/17/95 (H) JUD AT 01:00 PM CAPITOL 120 02/22/95 (H) JUD AT 01:00 PM CAPITOL 120 ACTION NARRATIVE TAPE 95-15, SIDE A Number 000 The House Judiciary Standing Committee was called to order at 1:07 p.m. on February 22, 1995. A quorum was present. The meeting was teleconferenced to Anchorage, Kenai, and Matanuska-Susitna. CHAIRMAN BRIAN PORTER stated that the following bills would be heard: HB 138, SSHB 52 and HB 108. He said HB 25 was scheduled, but would not be heard, as the committee substitute was not available yet. He called Representative Gary Davis to come forward and introduce HB 138. HJUD - 02/22/95 HB 138 - INFORMANT RELIABILITY/CRIME STOPPERS REPRESENTATIVE GARY L. DAVIS introduced the bill and gave the following Sponsor Statement: "The intent of this bill is clearly identified, so there is an understanding of what the intent of the legislation of reliability of Crime Stopper tips to the same extent that is provided to tips from people who are willing to identify themselves to the police, and the defendant, called `citizen informants.' "In Section 2 search warrants may be issued based on information received from a Crime Stopper organization and confidentiality maintained. This bill will establish one set procedure for all courts to follow in reviewing Crime Stopper reports. "When the court determines a review of the records is allowed the Crime Stopper information involving the identity of an informant is removed. "In Section 3, HB 138 allows the Crime Stopper Organization to be exempt from registration for fund raising. "This legislation provides a means for statutory recognition of the Crime Stoppers organization. "This bill gives the trial courts and the supreme court some guidance relative to the underlying intent when they deliberate on cases coming before them on the issue of reliability of crime stopper informant information." Number 130 PHIL NASH, Chairman, Central Peninsula Crime Stoppers, testified via teleconference. He described the organization as being a nonprofit group that started in 1983. This branch provides for the area of Kenai, Soldotna and Homer. The basic theory of Crime Stoppers, both locally and internationally, is for citizens to volunteer time through a nonprofit corporate structure; facilitating a method of gathering information regarding criminal activity, so the police can use that information to solve crimes without jeopardizing the people who gave the information, or their families. The basic problem at this time stems from a 1973 Supreme Court case, which had to do with arrest warrants. The court said a citizen informant has a degree of reliability that a criminal informant will not have. The theory assumes that there is some kind of honor among thieves. This legislation would not change the arrest warrant issue at all. That is a matter for the court. This bill would give crime stopper informants the same degree of reliability presently given to citizen informants. An important thing to look at is that from a citizen informant, the police must still have certain details, information that must be verified before they can proceed. Some informants do not want to expose themselves and their families to some type of adverse response by a criminal element, by identifying themselves. Number 210 NORMAN STUARD testified via teleconference. He said, "If the system ain't broke, don't fix it." He was against the bill. He felt the current system was working very well. Stating the presumption of reliability of an informant will not be removed from the court documents, lies in the face of the Fourth Amendment, which gives you the right to be faced by your accuser. This will be challenged in the Supreme Courts at a high cost to the state. He wondered about the political affiliation of someone who would support this legislation. REPRESENTATIVE CON BUNDE asked if Mr. Stuard's opinion was base on actual experience or involvement with crime stoppers, giving him a level of expertise, or whether he was just an interested observer. Number 275 MR. STUARD replied no, he had not been involved with crime stoppers. Number 290 REPRESENTATIVE BETTYE DAVIS asked about Mr. Stuard's comment on a person having the right to face his accuser. A lot of the people reporting to crime stoppers do not want to be identified. How then, do you handle that? Number 305 CHAIRMAN PORTER said there would be testimony further describing the elements of self-informant testimony. Number 315 BOB KINTZELE, Legal Investigator, testified via teleconference, that he has worked with numerous criminal defense attorneys and crime stoppers. He explained that the crime stopper program, though said to be a nonprofit organization, is actually operated out of the Kenai Police Department by a paid city employee. It is an agency of the police department. They would like it to be something other than what it is, but they operate out of the police department. They can be held to a different standard, because they call themselves nonprofit. The main motivation for reporting people with marijuana operations, is competition. If someone else wants the business, then they will report the person who is growing it, so they can eliminate the competition. That is not a pure motive. That is greed. The idea is to get a quick search warrant, the police are allowed to do something a little bit too easily, there is opportunity for abuse. That should be looked at real strongly. He could not see any court anywhere allowing this. Number 350 SUSAN ROSS, a paralegal, testified via teleconference and stated that the crime stopper informant reliability was proven unreliable by a study conducted on the Peninsula. Most of the anonymous tips were perpetrated on innocent victims because the information was incorrect. She felt this legislation would cause a shift, where instead of protecting the constitutional rights of the innocent, it would protect the anonymity of the crime stopper informant. She insisted the committee members vote no. Number 430 ARWIN SCHMIDT testified via teleconference. He felt that crime stoppers aids people who have the need to harass other people. He had been turned in to crime stoppers through an anonymous tip, but thought he knew who gave the tip. The police then got a warrant to search his house. Three officers in plain clothes came to break down his door, bringing the National Guard, a four-wheel drive vehicle, and two armored cars with them. His rottweiler could not tell they were cops, and neither could he. The dog almost ate one of them. He could not understand how crime stoppers believe they are doing such a service to the community when they are acting on tips they cannot verify. Number 460 SEYMOUR MILLS, a Sterling resident, testified via teleconference. He pointed out that in the oath of office everyone takes when they go to work for the legislature or any other member of office, they swear to uphold the Constitution. As far as his area of expertise goes, he can read. The United States Constitution is very clear and anyone can read it. Article 4 guarantees against unreasonable searches and seizures, and requires that any warrants issued have to have probable cause. Article 5 guarantees due process against probable cause affidavits. Article 6 gives you the right to be confronted by your accuser. Article 8, says cruel and unusual punishment shall not be inflicted. When someone breaks down your door and puts you in fear of loss of life and property, that is cruel and unusual punishment, when you have never even been convicted of anything. Articles 9 and 10 say all the rights not given to the government belong to the people. Number 500 LEONARD EFTA testified via teleconference that he opposed the bill and would be scared if this legislation passed. Number 505 REPRESENTATIVE BUNDE asked if the people in Kenai were opposed to the crime stoppers in general, as well as the proposed change. The consensus seemed to be that yes, they were opposed to crime stoppers. Number 525 GERALD MCQUEEN, representing Patricia Mann testified via teleconference, describing his experience. He was working last year when policemen came and raided his home. They told his girlfriend their home had been under surveillance for the last year and a half, and that they had an arrest and search warrant for this particular individual who no longer lived there. She told the gentleman that individual no longer lived there, and had not lived there for some time. He was particularly persistent, in the fact that she asked for a search warrant and there was no search warrant. He intimidated her to the point where she finally let him into the house with the purpose to search their basement. His concern was that the police had no idea what was going on. If there had been surveillance on their home for the last year and a half, they would have noticed somebody had moved out eight months ago, and that they were living in there now. The vehicles are completely different and he is now paying the taxes and utility bills as well. Their investigation was not only negligent, but preposterous that they even had one. He found it hard to believe his house had been under surveillance for a year and a half, and they had not even noticed someone had moved to a different residence. He said he can hardly leave his girlfriend at home to go to work anymore, or she goes into hysteria. Without a legitimate signed affidavit with a witness and evidence, these searches are preposterous. They invade people's privacy. His girlfriend is now scared and intimidated by our own legal system. He called the police officer's superior who informed him this was a crime stopper tip, and that his house had not been under surveillance. The cop had told out and out blatant lies. This legislation leaves the cops open to do whatever they want, and then cover it up later under a crime stopper bill. Number 575 BARBARA BRINK, Deputy Director, Alaska Court System, Public Defender Agency, testified via teleconference. She said she had a great deal of experience with search warrants she wished to share with the committee. This bill is not only constitutionally defective, it is really a bad idea. Citizens have the right to privacy, and the right to be free from intrusions and searches by the police. They may come into your home when they have a search warrant. The procedure to obtain a search warrant is very simple. The police go to a neutral person, a magistrate, and provide whatever information they have to show there is probable cause to believe the person is involved in criminal activity, and that the evidence of that particular crime will be found at that location. That is a pretty low standard of proof they have to show, that "probably" there is some evidence there. Search warrants are routinely granted. People who identify themselves can be presumed reliable. We do not want to permit searches when the information is unreliable, false, incorrect, or unsubstantiated, or motivated by some desire to wrongly accuse someone, or to make some sort of profit. It is not too much to ask that the information be provided in a reliable way. This bill defies common sense. As the law stands now, confidentiality of a witness can be granted if the state has good reason. REPRESENTATIVE BUNDE asked if the courts have allowed an anonymous tip to be the basis for a search warrant. MS. BRINK answered absolutely. Anonymous tipsters sometimes want to remain anonymous. All that needs to be shown is that the person has a basis for the information they are giving, and that if they are a criminal person, their information is reliable. That is all they have to show, and it can be established by showing a lot of detailed corroboration. Search warrants based on anonymous tips are upheld all the time. Number 700 RANDALL BURNS, Executive Director, Alaska Civil Liberties Union (ACLU), testified via teleconference that he felt the testimony given by Kenai residents to be indicative of the ACLU's concerns. He was concerned about taking the informant reliability decision away from the magistrate or judge. Removing that check by the nonpartisan entity would be unconstitutional. The police should not be in the position of making a credibility determination. Another concern is the question of requiring an order to find out the evidence in the basis of a search warrant. A right of confrontation requires that a defendant know his or her accuser and be able to defend against the charges. The ACLU believes they should have to ask the court for that information. He asked that the committee not pass this bill. Number 720 JAMES MESSICK, Crime Prevention Specialist, Wasilla Police Department, testified via teleconference. He has served on the Crime Stoppers Board and was in full support of the bill. He felt the objections to it reflect a misunderstanding of how crime stoppers works. It is typically not part of a law enforcement agency. It is intended to be made up of citizens within the community. No one wants to support a bill that would allow abuses by the police officers. This program has proven to be one of the most cost effective ways for law enforcement to obtain information they would not otherwise be able to obtain. As far as giving a tip with a wrong motive, there are those wanting to get rid of their grow operation competitors, but most of the calls received are from people who simply do not want to get involved. If this bill has defects, fix them, but then move onward. Number 765 REPRESENTATIVE FINKELSTEIN asked Mr. Messick what problems they are trying to fix regarding crime stoppers in the Mat-Su area. Number 775 WILLETT BUSHNELL, President of Mat-Su Crime Stoppers, Wasilla, testified via teleconference. He said they had challenges where they would try to subpoena crime stopper records and notes that are taken when a call comes in. They also try to obtain computer records containing statistics and so forth. There are Alaska Court cases on these issues in which they have prevailed. However, they have also had to have extreme cooperation by the prosecutors. In several cases where defense attorneys have subpoenaed our records, prosecutors have dropped the case, rather than endangering the informant or the crime stopper program. Because of that technicality, they support this bill. Crime stopper legislation has been passed in 14 states and in Guam. Crime stoppers tries to overcome the attitude of apathy by offering rewards. Last year, through this program, they recovered $76,000 in stolen property and $4,000,000 in narcotics; $8,500 in fines were levied, we had 50 arrests, and closed 82 cases. We offered $10,400 in rewards, and only paid out 30 percent of that. Most people that call in with tips do not want the reward money. All of this was done with no tax dollars. He supports the bill. Number 850 CAPTAIN TED RUDDELL, Department of Public Safety, Division of Fish and Wildlife Protection, testified via teleconference. He noted he was not scheduled to speak on the official position of the Department of Public Safety on this bill, but was available for questions on the Division of Fish and Wildlife's program which is similar to the crime stopper program. It is called the Alaska Fish and Wildlife Safeguard Program, and it is like a crime stopper program. Number 855 REPRESENTATIVE FINKELSTEIN asked if this program was under the Department of Public Safety. MR. RUDDELL said no. The program was a private nonprofit organization dedicated to promoting statewide fish and wildlife protection. It has been going on since 1984 and has a 24-hour toll free hot line. They have worked over 2,000 cases since 1984 on information received over this hot line. TAPE 95-15, SIDE B Number 000 REPRESENTATIVE FINKELSTEIN asked Mr. Ruddell if they were just as able to take advantage of anonymous tips that get called to that organization, as if they were called to normal state law enforcement agencies. Are you able to make good use of these anonymous tips? Number 030 MR. RUDDELL answered yes, they are. They use the same standard of verifying information, initiating where Fish and Wildlife Troopers need to respond at a given time. It provides a little bit of security for people who are reluctant to go through the normal hot line. This 24-hour hot line is gaining nationwide popularity. Number 080 REPRESENTATIVE FINKELSTEIN asked if they have, in general, had success in getting search warrants based on these anonymous tips. Number 085 MR. RUDDELL answered the number of search warrants they have obtained based on these anonymous tips has been very small, but each time, the information was not critical in obtaining a search warrant. What the information did was direct the efforts of the officers to obtain more probable cause, in order to get the search warrant. Number 100 REPRESENTATIVE BUNDE asked if a lot of these anonymous situations arose out of revenge motives. Number 115 MR. RUDDELL thought that there was revenge in a very few cases involving divorce. Number 200 DEAN GUANELI, Assistant Attorney General, Department of Law, echoed a number of comments of people who spoke in support of crime stoppers organizations. In many instances they do perform a public service. There a lot of people who do not want to get involved in the criminal justice system and are afraid of retaliation if they were to report a crime. Unfortunately, we live in a society where retaliation for honest citizens for reporting crimes is all too common. Because of that, people who use crime stoppers organizations expect anonymity, and sometimes refuse to give their names. It seemed that to the extent that the courts are imposing rules upon this kind of information, it is probably based on the Fourth Amendment to the United States Constitution, or the comparable provision of the Alaska Constitution. To the extent that it is constitutionally based, there is a question whether the legislature can change the rules of presumption the courts apply in assessing this type of evidence. This ought to be looked at more carefully. He wondered whether they could do, constitutionally, what is proposed in this provision about search warrants. Having said that, however, once the court hears the information that is provided anonymously, and tests that information with whatever standard the court believes is constitutionally required, and then decides that information passes that test, and that the court can legitimately issue a search warrant based on that information; at that point, the police have done all they can do. They have presented the information they have to the judge, the judge has made a ruling, has issued a warrant, which is what our Constitution requires, and the police go out and find some evidence. At that point, you start to wonder how relevant it is who that informant is, what that person's motives were, and you start to wonder whether a defendant ought to be allowed to have that identity and information divulged; because the reason for getting a search warrant is to prevent the police from abusing the Constitution; to force the police to go through the method our Constitution sets out for searching people's property. Once they have done all that, you have to wonder whether the policies that support the crime stoppers organizations outweigh a defendant's opportunity to go in and find out who this person was. It is not really an issue of your right to confront your accusers. Your accuser is the police officer who found marijuana growing in your basement, not the person who detected the odor of marijuana while walking past your house. Number 340 REPRESENTATIVE TOOHEY asked if anonymity would be up to the individual providing the information, or up to the police. CHAIRMAN PORTER said the common practice is to grant anonymity to a witness to the extent that they can proceed with the case. If they come up against a situation where they do not have enough verifying information or details to justify a search warrant or arrest; they would come back to you and say they have two steps, but need three. The only way to get three steps, is if you give your name. If you say no, the case is dismissed. Number 380 REPRESENTATIVE FINKELSTEIN asked what the current procedure is. When an anonymous tip comes in, do they try to verify what they consider a sufficient amount of details? Number 390 MR. GUANELI said if there is an anonymous tip, the police have to try to collaborate some of that information. The level of collaboration they need to come up with may vary from judge to judge, but he was not certain how some of the details of this language fit into the current test. Number 430 CHAIRMAN PORTER said he has been involved with crime stoppers for a number of years, and they serve a very good purpose. They have demonstrated their success all over the country. The bill in front of us asks for an additional consideration towards the crime stoppers program, that does present some constitutional problems. He wanted Anne Carpeneti and Dean Guaneli to get together with the sponsor to see if they could shape some of this language to get away from the constitutional problem that exists in terms of lowering the standard for informant evidence. That would not make it, and it would not be in anybody's best interest to pass a bill out that would not meet the constitutional challenge. REPRESENTATIVE GARY DAVIS appreciated the concerns and did not intend to usurp any constitutional rights. He appreciated the recommendation, and intended to pursue that. HJUD - 02/22/95 SSHB 52 - DNA EVIDENCE IN CIVIL AND CRIMINAL TRIALS Number 470 REPRESENTATIVE GREEN, sponsor of the bill, introduced it, saying it would allow the introduction of DNA as one of the pieces of information used in a trial. By no means would it be the make or break piece of evidence, but it would be allowed in addition to other evidence, to help establish the guilt or innocence of an individual. Number 489 LISA MOCK, Legislative Aide to Representative Joe Green read the sponsor statement: "In recent years, the Alaska Legislature has invested significant amounts of money to create one of the best state forensic crime labs in the country. A substantial portion of those dollars has gone into state-of-the-art deoxyribonucleic acid (DNA) analysis equipment and experts. Having now made the scientific investment, it is time for the Legislature to ensure that DNA evidence can routinely be heard by Alaskan juries. "DNA analysis involves the comparison of the unique genetic coding found on chromosomes in samples of body fluids. Since the mid- 1980s, DNA analysis increasingly has been used to match samples of body fluids found at crime scenes with those of suspects. If the samples match, the laboratory then determines the probability that the samples could have come from someone other than the defendant. "Scientific testimony is often the deciding factor for the judicial resolution of civil and criminal cases. To test for the admissability of scientific evidence such as DNA, Alaskan courts have used the Frye test since 1970. Under the Frye test, in order for scientific evidence such as DNA to be admitted in Alaskan cases, the court must determine whether there is a general consensus in the relevant scientific community that the scientific testimony is reliable. This is sometimes called the "general acceptance" test. "The problem with the Frye test is that is uses a social standard -- general consensus -- rather than a scientific standard. The Frye test makes it nearly impossible, and outrageously expensive, for an Alaskan judge to determine in each individual case what constitutes a general, national scientific consensus. "Furthermore, the Frye test results in very high court costs. In order to meet the standards of Frye, there are frequently repetitive hearings involving similar expert testimony. For example, in September 1994, a DNA hearing for a murder case in Anchorage cost the state between $10,000 and $20,000 to provide four DNA experts from laboratories in North Carolina, California, and Oregon. "If enacted, HB 52 would enable the court to first determine if the evidence is relevant, then weigh the evidentiary value against the prejudicial effect the evidence may have on the defendant's case. Passage of HB 52 would allow the court to make a preliminary assessment as to whether the underlying reasoning or methodology of the DNA testing is scientifically valid and if it can be applied to the cases at issue. The inquiry is flexible, and more importantly, focuses on scientific validity, not general consensus. If the principles, methodology, and reasoning are scientifically valid, then it follows that the inferences, assertions, and conclusions derived therefrom are scientifically valid as well. "HB 52 would provide a flexible and more lenient test that favors the admission of any scientifically valid expert testimony. The ongoing debate over DNA testing underscores the need to deal more effectively with the difficulties that arise whenever complex scientific technology is introduced as evidence in a court of law. I strongly urge the Alaska Legislature to pass HB 52." Number 560 REPRESENTATIVE TOOHEY made a motion to adopt Version M as the work draft. Seeing no objection, it was so ordered. Number 580 MR. GUANELI discussed the legal aspects. He explained the changes that have been made through the different versions of the committee substitute. Essentially what this addresses is the standard for admissability. Definitions of what DNA profile means, as was just explained, turns on this scientific validity of the evidence, rather than on some other more difficult standard, such as general acceptance in the relevant scientific community. Part of the question about DNA evidence is that it is a rapidly changing field. There are labs all across the country doing work in the DNA field and there are universities all across the country that are studying the statistics on which the probabilities are based. The research is rapidly expanding through use of computers, but the relevant scientific community that may use this type of evidence has a hard time keeping up with the development of this testing, and therefore the cutting edge of the field, which is certainly scientifically valid, and some of the world's foremost experts will testify to that effect; it really has not trickled down yet to the general scientific community. That is the problem in using this test that the courts now use which dates from the 1920s. MR. GUANELI said the United States Supreme Court has adopted a test based on scientific validity, and certainly for DNA evidence, which is a modern, and rapidly changing field, it is appropriate to use a more modern type of test for scientific evidence. That is what this does. He clarified the costs of the experts in that trial were not between $10,000 and $20,000; they were over $20,000. Mr. Guaneli approved those bills for payment. They had the same kind of costs in a murder/rape case in Fairbanks, where there were extensive hearings in front of the judge, and the judge wrote a long opinion, and the case is up on appeal now. There are limitations the Alaska courts have placed on the admissibility of this evidence under that old test. The courts will not, under the old test, allow the experts to state that based on the best scientific testing, the probabilities are one in a million that it could be somebody else. They will be able to testify that, based on other types of testing which are more accepted in the general scientific community, that the odds are four out of 100, or something like that. In some cases, that is good enough, and in other cases, it may not be. MR. GUANELI stated one of the primary uses of DNA evidence is to exclude individuals. It is very good at excluding other suspects. That not only protects innocent people, but it also helps the prosecution because a lot of times, particularly in murder cases, there is no witness, so it is a circumstantial case, and one of the best defenses at trial is to say some other person did it. The defense will point a finger at a number of people who may have been in the area at the same time and may have done it. By taking blood samples from those people, we can exclude them with 100 percent certainty. That is what happened in the Fairbanks case. A woman was killed in her home. The natural suspects, based on the investigation, were any number of men in the neighborhood. All of them except one gave a blood sample and were excluded. This is valuable evidence. MR. GUANELI wanted to clarify that when he had testified a couple of weeks ago about the DNA data bank, he indicated at the time, that as good as that bill was, it was really only answering half of the question. It is one thing to collect samples and to test those samples and identify suspects, it is another thing to use that evidence in court. This is the other half of the picture. Number 670 REPRESENTATIVE FINKELSTEIN used the example of a case where they are using DNA evidence and the defense is challenging the credibility. Is this argument going on before the judge or the jury? Does a jury make decisions on scientific sufficiency of DNA testing, or is it up to the judge? MR. GUANELI said the judge would determine if the evidence is allowed to get in front of the jury. And then, like any other evidence, it is for the jury to decide how much weight to give that evidence. He was not saying that by passing this bill, they will not have to pay experts to come in and give testimony. We will have to, because, in order for the jury to understand this evidence, and to view it as something other than a series of lines on a chart, we are going to have to bring in some chemists from the state crime lab who will be able to explain this to the jury. But the judge makes the initial determination as to whether the evidence is scientifically valid enough to go in front of a jury. Once that decision is made it is up to the jury to decide whether or not to give this information credibility, and that depends on the way the test was done, the way the evidence was collected, and that sort of thing. Number 690 REPRESENTATIVE FINKELSTEIN said that if it does get before a jury, the defense can still spend their time trying to discredit the scientific basis for the information, with or without this bill, correct? MR. GUANELI agreed. Number 695 LINDA BRANCHFLOWER, Alaska Peace Officers Association (APOA), testified via teleconference. She said she is a detective for the Anchorage Police Department and has worked with sex crimes for four years. DNA has been used by police agencies since 1986 to clear people as well as to convict them. For an analogy, fingerprinting was introduced in the Saint Louis World's Fair in 1901, and it only took five years to become widely accepted in American courts. The APOA feels this scientific procedure has been beneficial in courts all over the world, and you should not bow to the pressure of these criminal defenses bars, trying to keep a useful piece of evidence form the court room. Number 720 ARVID BJORNTON, member of the Board of Directors of (STAR), testified via teleconference. He is also a member of the Task Force on Sexual Assault and Domestic Violence in Anchorage. He wanted to bring to light the importance of DNA evidence in court cases to victims of violent crimes, especially sexual assault. The issue is usually one of consent. In one situation a person will say, "Yes I did it, and she was willing." On the other end of the spectrum is the person who will say, "I did not do it. I was not there. I do not know who she is." The admission of DNA evidence tends to show whether the suspect was at the scene of the crime or not. It saves a lot of time and money. Number 750 RANDALL BURNS, Alaska Civil Liberties Union (ACLU), said the group is not opposed to the use of DNA evidence. They did have concerns about the validity of its uses. "The admission of the DNA profile does not require a finding of general acceptance in the relevant scientific community of DNA profile evidence.", is a very strange sentence to have in a statute. What we are saying is we do not really think it has to be generally acceptable on scientific principles in order to establish potential guilt or innocence in a case. It is a strange thing to say that we do not care that it is not generally accepted or that it is scientifically valid. We are talking about the taking away the freedom of or the incarceration of an individual, based on DNA evidence. Before we rush into a debate on the value of science, we need to recognize that the O.J. Simpson case has shown us that there are lots of disputes, not necessarily about the process of the DNA test itself, but about the way in which the samples are collected, the validity of the labs and the testing they are doing, and the kinds of calculations made in determining validity of evidence. This bill says nothing about ensuring us the DNA samples used were collected properly, maintained properly at the lab, and that is a concern. MR. BURNS did not generally oppose DNA testing, but wanted to see that there were assurances about procedures used. Number 827 REPRESENTATIVE FINKELSTEIN saw Mr. Burns' point, and also thought there could be a clearer way to say it. TAPE 95-16, SIDE A Number 000 CHAIRMAN PORTER said the standard they would not like to meet, is the situation that gets you to go get five experts who are so behind the power curve on this technology, that they will say, "No, this is not generally excepted. I have never heard of it." Of course, they have not opened a book in ten years either, but you can always do that, and it will take years to get through a trial if that is the way you have to operate. If you have an expert that says, "This is invalid because of this," and "That is relevant and can be admitted," the judge then gets to say whether it is relevant. MR. GUANELI felt that accurately summarizes the intent of what we are trying to do. We want you to use the standard that has been adopted by the United States Supreme Court, which is the scientific validity standard. The second sentence says that what we mean by that is we do not want you to go back to using the old test. Because if a judge wants to interpret the phrase, "scientifically valid" in a way that is really the old way of doing it, requiring some consensus, we could end up back where we started because in Section 3, this can amend a court rule to the extent that would limit the admissibility; and the reason we are doing that is because we want to overturn this case. This section is not going to be in the statutes anywhere. It needs to be set in statute saying we do not want you going back to your old test, because it really does not fit this kind of evidence anymore. That is the reason why the two sentences are in there. REPRESENTATIVE GREEN said we are going to allow the Dalbert test, and not have to use the Frye test. That is really all it is saying. REPRESENTATIVE BUNDE made a motion to move the bill out of committee, with zero fiscal notes and individual recommendations. Seeing no objection, it was so ordered. HJUD - 02/22/95 HB 108 - USE PFD'S TO RECOVER WELFARE OVERPAYMENTS Number 070 REPRESENTATIVE TOOHEY, sponsor of the bill, read the following sponsor statement: "House Bill 108 would give the Department of Health and Social Services the administrative authority to garnish permanent fund dividends of individuals who have received public assistance overpayments and are delinquent in repaying the debt. "Frequently persons receiving overpayments agree to repay the debt, but fail to do so. If a person is still on public assistance, the person's benefit can be reduced as a means of collection, but if a person is off assistance, collection becomes difficult. There is currently over half a million dollars in outstanding debt due the Department. "Collection through the court system can be time-consuming and costly, House Bill 108 would allow the Department to pursue in the same manner that delinquent loans are pursued." REPRESENTATIVE TOOHEY said this legislation is supported by the Department of Health and Social Services. There are two positive revenue generating fiscal notes from the Department of Health and Social Services, and a zero fiscal note from the Department of Revenue. She introduced Elmer Lindstrom who came to testify. ELMER LINDSTROM, Special Assistant, Office of the Commissioner, Department of Health and Social Services, had nothing to add, except that they do support the bill. Number 135 REPRESENTATIVE FINKELSTEIN assumed the department currently has the power to garnish permanent fund dividends (PFDs) for someone who is a current recipient. MR. LINDSTROM answered if the person is a current recipient of public assistance, it would be a matter of reducing their future payments. This is only an issue for people who have left the caseload, and have been overpaid. Number 150 REPRESENTATIVE FINKELSTEIN asked if the first sentence, AS 09.38 applies to PFDs taken under this new section we were making. ANNE CARPENETI, House Judiciary Committee Aide, said there are exceptions for bankruptcy. REPRESENTATIVE FINKELSTEIN asked if you would still have this debt if you went bankrupt. MS. CARPENETI said that was right. Number 170 REPRESENTATIVE DAVIS made a motion to move the bill out of committee with accompanying fiscal notes and individual recommendations. Hearing no objection, it was so ordered. ADJOURNMENT The House Judiciary Committee adjourned at 3:20 p.m.