Legislature(1995 - 1996)

02/22/1995 01:07 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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               
            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              
            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                                                               
 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                                                                
 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-                    
 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                                                                
 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           
 "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                    
 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               
 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                
 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            
 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                                                               
 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                
 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,              
 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                    
 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                  
 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             
 "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.                    
 The House Judiciary Committee adjourned at 3:20 p.m.                          

Document Name Date/Time Subjects