Legislature(1995 - 1996)

01/22/1996 01:05 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
               HOUSE JUDICIARY STANDING COMMITTEE                              
                           1:05 a.m.                                           
                        January 22, 1996                                       
                                                                               
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Brian Porter, Chairman                                         
 Representative Joe Green, Vice Chairman                                       
 Representative Con Bunde                                                      
 Representative Bettye Davis                                                   
 Representative Al Vezey                                                       
 Representative Cynthia Toohey                                                 
 Representative David Finkelstein                                              
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 All Members Present                                                           
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 HOUSE BILL NO. 314                                                            
 "An Act relating to the crime of violating a domestic violence                
 restraining order."                                                           
                                                                               
      - PASSED CSHB 314(JUD) OUT OF COMMITTEE                                  
                                                                               
 HOUSE BILL NO. 326                                                            
 "An Act relating to disclosures in contacts between crime victims             
 and witnesses and the defense; relating to recordings of statements           
 of crime victims and witnesses by the defense; and amending Alaska            
 Rule of Evidence 613."                                                        
                                                                               
      - HEARD AND HELD                                                         
                                                                               
 HOUSE BILL NO. 333                                                            
 "An Act relating to licensure requirements for employees of the               
 office of public advocacy and the Public Defender Agency."                    
                                                                               
      - PASSED OUT OF COMMITTEE                                                
                                                                               
 PREVIOUS ACTION                                                               
                                                                               
 BILL:  HB 314                                                               
 SHORT TITLE: VIOLATING DOMESTIC VIOLENCE ORDERS                               
 SPONSOR(S): REPRESENTATIVE(S) PARNELL, Robinson, Bunde, Elton                 
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 04/20/95      1399    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 04/20/95      1400    (H)   JUDICIARY                                         
 04/24/95      1486    (H)   COSPONSOR(S): ELTON                               
 01/22/96              (H)   JUD AT 01:00 PM CAPITOL 120                       
 BILL:  HB 326                                                               
 SHORT TITLE: REQUIRE CONSENT TO RECORD WITNESS/VICTIM                         
 SPONSOR(S): REPRESENTATIVE(S) PARNELL                                         
                                                                               
 JRN-DATE     JRN-PG                  ACTION                                   
 04/29/95      1665    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 04/29/95      1665    (H)   JUDICIARY                                         
 01/22/96              (H)   JUD AT 01:00 PM CAPITOL 120                       
                                                                               
 BILL:  HB 333                                                              
 SHORT TITLE: BAR MEMBERSHIP:PUBLIC DEFENDER/ADVOCATE                         
 SPONSOR(S): REPRESENTATIVE(S) PARNELL                                         
                                                                               
 JRN-DATE     JRN-PG                   ACTION                                  
 05/03/95      1815    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 05/03/95      1815    (H)   JUDICIARY                                         
 01/22/96              (H)   JUD AT 01:00 PM CAPITOL 120                       
 01/24/96      2520    (H)   JUD RPT  6DP                                      
 01/24/96      2520    (H)   DP:  PORTER, VEZEY, FINKELSTEIN,                  
 01/24/96      2520    (H)   B.DAVIS, BUNDE, TOOHEY                            
 01/24/96      2520    (H)   INDETERMINATE FISCAL NOTE (ADM)                   
 01/24/96      2520    (H)   REFERRED TO RULES                                 
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 REPRESENTATIVE SEAN PARNELL                                                   
 Alaska State Legislature                                                      
 State Capitol Building, Room 515                                              
 Juneau, Alaska 99801-1182                                                     
 Telephone:  (907) 465-2995                                                    
 POSITION STATEMENT:  Sponsor of HB 314, HB 326, and HB 333.                   
                                                                               
 DEAN GUANELI                                                                  
 Chief Assistant Attorney General                                              
 Criminal Division                                                             
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, Alaska 99811-0300                                                     
 Telephone:  (907) 465-3428                                                    
 POSITION STATEMENT:  Suggested some amendments to the proposed                
                      CSHB 314(JUD).                                           
                                                                               
 BARBARA BRINK, Deputy Public Defender                                         
 Public Defender Agency                                                        
 Department of Administration                                                  
 900 West Fifth, Suite 200                                                     
 Anchorage, Alaska 99501                                                       
 Telephone:  (907) 264-4400                                                    
 POSITION STATEMENT:  Testified against CSHB314                                
                                                                               
                                                                               
 LAUREE HUGONIN, Executive Director                                            
 Alaska Network on Domestic Violence and Sexual Assault                        
 130 Seward Street, Room 501                                                   
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 586-3650                                                    
 POSITION STATEMENT:  Supported CSHB 314                                       
                                                                               
 FRED DEWEY, Defense Attorney                                                  
 1101 West 7th Street                                                          
 Anchorage, Alaska 99501                                                       
 Telephone:  (907) 276-3299                                                    
 POSITION STATEMENT:  Testified against CSHB 314                               
                                                                               
 JAYNE ANDREEN, Executive Director                                             
 Council on Domestic Violence and Sexual Assault                               
 Department of Public Safety                                                   
 P.O. Box 111200                                                               
 Juneau, Alaska  99811-1200                                                    
 Telephone:  (907) 465-4356                                                    
 POSITION STATEMENT:  Supported CSHB 314                                       
                                                                               
 KEVIN McCOY, Federal Public Defender                                          
 Office of Federal Defenders for the District of Alaska                        
 510 L Street, Suite 400                                                       
 Anchorage, Alaska  99501                                                      
 Telephone:  (907) 271-2277                                                    
 POSITION STATEMENT:  Testified on CSHB 314                                    
                                                                               
 ROBERT BUNDY, United States Attorney                                          
 District of Alaska                                                            
 222 West 7th Avenue, Room 253                                                 
 Anchorage, Alaska  99501                                                      
 Telephone:  (907) 271-5071                                                    
 POSITION STATEMENT:  Testified on CSHB 314                                    
                                                                               
 JOHN SALEMI, Director                                                         
 Public Defender Agency                                                        
 Department of Administration                                                  
 900 West 5th Avenue, Suite 200                                                
 Anchorage, Alaska  99501-2090                                                 
 Telephone:  (907) 264-4400                                                    
 POSITION STATEMENT:  Testified on HB 333                                      
                                                                               
 BRANT McGEE, Director                                                         
 Office of Public Advocacy                                                     
 Department of Administration                                                  
 900 West 5th Avenue, Suite 525                                                
 Anchorage, Alaska  99501-2090                                                 
 Telephone:  (907) 274-8816                                                    
 POSITION STATEMENT:  Testified on HB 333                                      
                                                                               
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 96-5, SIDE A                                                             
 Number 000                                                                    
                                                                               
 CHAIRMAN BRIAN PORTER called the House Judiciary committee meeting            
 to order at 1:05 a.m.  Members present at the call to order were              
 Representatives Bettye Davis, Finkelstein, Toohey, Bunde Green and            
 Porter.  Chairman Porter noted Representative Vezey was attending             
 another meeting but would join the Judiciary Committee later.  A              
 quorum was present.  This meeting was teleconferenced to Anchorage.           
 HB 314 - VIOLATING DOMESTIC VIOLENCE ORDERS                                  
 HB 326 - REQUIRE CONSENT TO RECORD WITNESS/VICTIM                            
                                                                               
 CHAIRMAN PORTER informed the committee that they are scheduled to             
 hear HB 314, "An Act relating to the crime of violating a domestic            
 violence restraining order,"  and  HB 326 "An Act relating to                 
 disclosures in contacts between crime victims and witnesses and the           
 defense; relating to recordings of statements of crime victims and            
 witnesses by the defense; and amending Alaska Rule of Evidence                
 613."  He explained both of the bills remain intact, but have been            
 merged into one committee substitute (CS).  There are a couple of             
 minor adjustments to CSHB 314 that will be explained.  Chairman               
 Porter asked Representative Parnell to explain the bill                       
                                                                               
 REPRESENTATIVE SEAN PARNELL, sponsor of HB 314 and HB 326, asked if           
 the committee has adopted the CS as the working document.                     
                                                                               
 Number 161                                                                    
                                                                               
 REPRESENTATIVE CON BUNDE moved that the committee adopt CSHB 314 as           
 the committee's working document.  CHAIRMAN PORTER said there has             
 been a motion to adopt CSHB 314(JUD), Version F, dated January 22,            
 1996.  He asked if there was an objection.  Hearing none, CSHB                
 314(JUD) was before the committee.                                            
                                                                               
 Number 197                                                                    
                                                                               
 REPRESENTATIVE PARNELL explained CSHB 314 now contains two bills.             
 The first portion has to do with domestic violence restraining                
 orders and the second portion has to do with surreptitious taping.            
 With respect to domestic restraining orders under Title 25, a                 
 person, upon a showing that they've been subjected to domestic                
 violence, can go into court and get a domestic violence restraining           
 order.  He explained that by statute, the restraining orders can              
 include several provisions.  It can restrain a person from being              
 within a certain distance from somebody.  It can include making               
 somebody vacate a household.  It can include keeping them out of a            
 person's vehicle.  Basically, it keeps an individual away.                    
 REPRESENTATIVE PARNELL said currently, if you violate a domestic              
 violence restraining order, a violation is defined in statute as              
 merely communicating directly or indirectly with the other party.             
 A violation does not include getting into a car with somebody.                
 CSHB 314 attempts to mirror those elements that are generally                 
 included in a domestic violence restraining order.  Representative            
 Parnell informed the committee members it is more of a technical              
 change, but it is an important one.                                           
                                                                               
 REPRESENTATIVE PARNELL said the second half of the bill relates to            
 surreptitious taping.  This portion of the bill has three sections.           
 In general, the principle is that, if you are a criminal defendant            
 or are working for a defense attorney, you cannot go tape record              
 the statement of a crime victim or a witness without their consent.           
 In short, CSHB 314 says if you're a member of the defense team and            
 you're going to go tape a crime victim or a witness of a crime,               
 you'd have to give them notice that you're taping and get their               
 consent on the tape.  Representative Parnell said that covers the             
 first two sections.                                                           
                                                                               
 Number 380                                                                    
                                                                               
 REPRESENTATIVE BUNDE referred to the section about surreptitious              
 taping and said it is his understanding that the prosecution is not           
 allowed to tape.  He asked Representative Parnell if he is asking             
 that it be even handed so that the defense not be allow to tape               
 without prior notification.                                                   
                                                                               
 REPRESENTATIVE PARNELL explained the prosecution can tape under               
 certain circumstances.  For instance, prosecution can tape if a               
 uniformed officer is present or if there is a court order.  There             
 are some specific activities that can be taped by the prosecution.            
 He said testimony by the Department of Law (DOL) would cover those            
 issues.                                                                       
                                                                               
 REPRESENTATIVE BUNDE added that taping by the prosecution is only             
 done with the permission of the courts.  REPRESENTATIVE PARNELL               
 said it can be done outside the permission of the courts.  He said            
 he believed Dean Guaneli could answer that question better.                   
 Representative Parnell explained the final section of CSHB 314                
 deals with victims and witnesses of sexual offenses.  Basically it            
 states that if you are a victim or a witness of a sexual offense              
 and you have provided in writing that you do not want to be                   
 contacted, the defense cannot contact you directly.  There are                
 several ways you can get around that.  One way is that the victim's           
 statement to the police is available through discovery.  The                  
 victim's (indisc.) to the victim from the Grand Jury proceedings              
 are also available.  There is a provision in the criminal rules               
 where if you show good cause, you can take the deposition of a                
 victim regardless of what kind of an offense has occurred.  There             
 are other avenues of information available to the defense.                    
                                                                               
 Number 539                                                                    
                                                                               
 REPRESENTATIVE JOE GREEN said in essence, CSHB 314 codifies that              
 which is already used in law.  CSHB 314 doesn't establish anything            
 that isn't presently done, it just brings it into the statute.                
                                                                               
 REPRESENTATIVE PARNELL said he doesn't think that is wholly                   
 accurate.  For instance, with the domestic violence restraining               
 order, there are some judges that will apply the statute very                 
 literally which means that if there is no communication,                      
 technically he is not in violation of a statute.  Representative              
 Parnell said what he is trying to do is to get an even application            
 of the violation of the domestic violence restraining order.  In              
 terms of codifying what is currently the case, it is his                      
 understanding that a representative from the Public Defender's                
 office can go interview somebody could say, "I'm from the PD's                
 office and I'd like to ask you a couple of questions."  That person           
 can then surreptitiously record a conversation.  He said he doesn't           
 think that a crime victim or a witness has any lesser expectation             
 of privacy than any other person.  They should be given notice of             
 the taping then give consent before they are taped.                           
                                                                               
 Number 645                                                                    
                                                                               
 DEAN GUANELI, Chief Assistant Attorney General, Criminal Division,            
 Department of Law, referred to the surreptitious taping aspect of             
 the CS and said up until recently it was considered by the Alaska             
 Bar Association to be unethical conduct for an attorney to secretly           
 tape record somebody else's conversation.  That ethics opinion was            
 consistent with other ethics opinions from around the country and             
 existed for a number of years.  The Board of Governors of the                 
 Alaska Bar Association was persuaded, however, that they ought to             
 amend that long standing practice.  At least with respect to                  
 criminal defense lawyers, their agents and investigators, it would            
 no longer be unethical for them to secretly record somebody's                 
 conversation as long as they disclosed who they were.  The process            
 leading to that decision was, in the view of many, flawed.  In fact           
 the Ethics Committee, which is a committee of the Alaska Bar                  
 Association, unanimously opposed that decision by the Board of                
 Governors.  Nonetheless, the Board of Governor's did that and it              
 resulted in the legislation.                                                  
                                                                               
 MR. GUANELI said the proposed CSHB 314 says, "O.K., if the                    
 attorneys don't think it's unethical and if they're gonna anyway,             
 at least there are going to be some standards."  You are going to             
 notify the person, who is contacted, with whom you are affiliated             
 and their consent is going to be recorded on the tape.  If they ask           
 for a copy of the tape, you will give them a copy.  CSHB 314 sets             
 some standards.  Mr. Guaneli said he would address the question of            
 whether prosecutors can do that.  During the discussions in the               
 Alaska Bar Association, many times it was stated that prosecutors             
 can secretly tape record.  He said, "We can't."  The police can do            
 surreptitious taping in a number of circumstances.  He listed them            
 as follows, first, pursuant to a warrant by a court when there is             
 probable cause to believe that a crime has been committed.  Mr.               
 Guaneli pointed out when someone says they wear a wire, you don't             
 just wire someone up and send them out.  You've got to get a court            
 order to enable that to be done.                                              
                                                                               
 MR. GUANELI explained the second circumstance surreptitious taping            
 can occur is when you're dealing with someone in uniform.  There              
 are a lot of police offices who, for their own safety, when they              
 pull someone over and give a traffic ticket, use a recorder to tape           
 everything that transpires.  So when someone starts acting                    
 outrageously and an arrest is made, the police officer is protected           
 by the recording and prevents misunderstandings.  Police officers             
 don't need a court order at that time because they're in uniform.             
 Mr. Guaneli said the other exception when surreptitious taping can            
 be done is when you're calling the police station.  Most people               
 recognized that when they call into a police station and there is             
 a beep on the line, their calls are being recorded.  A court order            
 is not needed for that.  Mr. Guaneli said defendants who are at the           
 police station and are being questioned, in many circumstances                
 having their conversations with the police recorded.  In fact, the            
 Alaska Appellate Courts have required that the police make                    
 recordings of their conversations with defendants so that there is            
 no misunderstanding about what was said.  There is no                         
 misunderstanding about the fact that they were read their rights              
 and they voluntarily gave up their right to remain silent.                    
                                                                               
 MR. GUANELI said the police can make recordings with or without a             
 court order under limited circumstances.  Prosecutors cannot.                 
 According to the Alaska Bar Association, it is not unethical                  
 conduct for defense attorneys to do it and the CSHB 314 sets some             
 standards for doing that.                                                     
                                                                               
 Number 954                                                                    
                                                                               
 MR. GUANELI suggested some proposed changes that will make CSHB 314           
 better.  The first changes the definition of witness.  CSHB 314               
 defines a witness in terms of any person who it is believed might             
 have knowledge of the criminal case.  Mr. Guaneli said the specific           
 language is on line 6.  A witness is someone who is contacted                 
 because they may have knowledge of the case, not because the person           
 believes they may have knowledge.  This eliminates the excuse used            
 for not gaining consent for taping, such as the investigator didn't           
 know the person had knowledge so they weren't considered a witness.           
 In other words, the subjective intent of the person making the                
 recording or taking the statement shouldn't be relevant.  It is               
 just whether or not that person is a witness in the common                    
 parlance.  He said he believes his proposal clarifies the issue.              
                                                                               
                                                                               
 MR. GUANELI said the second amendment, on page 3, right after line            
 30, defines what a statement means in this section.  CSHB 314 does            
 a couple things.  One, it says that with respect to any victim or             
 witness of any crime, you've got to notify them if they're being              
 tape recorded.  The tape has to actually disclose the notification.           
 Then with respect to victims and witnesses of sexual offenses, if             
 you want to contact them and take their statement, you have to get            
 written permission and record their consent on tape.  This double             
 requirement may not be appropriate.  If you're getting it on the              
 tape and the victim discloses it on the tape, that ought to be                
 enough.  Mr. Guaneli said by defining "statement" to mean written             
 or oral statements, but not including a properly recorded                     
 statement, you'd take care of that double requirement.                        
                                                                               
 Number 1118                                                                   
                                                                               
 CHAIRMAN PORTER asked if subsection "(f)" should be included.  MR.            
 GUANELI responded, "Or it could be just another -- in this section            
 --  where it says `(e)' in this section `sexual offense means' and            
 `statement means.'"  He noted he has a definition for statement.              
 You would define the word "statement."  Mr. Guaneli said he would             
 propose that "statement" means a written or oral statement.                   
                                                                               
 Number 1228                                                                   
                                                                               
 MR. GUANELI referred to his third amendment and said he thinks it             
 is the most important.  This amendment is to specifically states              
 what the consequences are for violating these provisions.  On page            
 3, lines 20 to 23, there is a provision that says that                        
 surreptitious taping is inadmissible unless the court finds the               
 statement will constitute manifest injustice.  He said he thinks              
 that in order to give the court some standards for making that                
 determination, some additional provisions are necessary and added             
 that if the statement is reliable, the evidence can't be obtained             
 from any other source and by not admitting the fact finding process           
 will be undermined.  That gives the court some guidelines in making           
 this determination.  He said we don't want the court to go                    
 overboard in either direction to rule all of the statements                   
 inadmissible because that is unfair to defendants if it is                    
 something very important and exculpatory.  On the other hand, we              
 don't want it to be loose so that all surreptitious taping would be           
 admitted because eliminating the deterrent value.  He explained he            
 has a proposed amendment which incorporates those additional                  
 requirements.                                                                 
                                                                               
 REPRESENTATIVE GREEN asked if this would replace lines 20 to 23.              
 MR. GUANELI said that is correct.  He said the language currently             
 in lines 20 to 23 is only applicable in Section 125 and there is no           
 reason why it shouldn't also apply to the secret tape recording               
 provision as well.  In other words, if we are to have some                    
 (indisc.) value in this, we really need to apply it to both                   
 circumstances.  He suggested that a similar provision should also             
 apply to the secret tape recording.                                           
                                                                               
 Number 1280                                                                   
                                                                               
 REPRESENTATIVE GREEN asked if the sponsor is in agreement with the            
 amendments.  MR. GUANELI said because of the time frames involved,            
 the sponsor saw the amendments shortly before the meeting began.              
                                                                               
 BARBARA BRINK, Deputy Public Defender, Public Defender Agency,                
 Department of Administration, testified via teleconference from               
 Anchorage.  She informed the committee she has been an attorney and           
 an investigator for the Public Defender for 13.5 years.  Ms. Brink            
 said she would give the committee the benefit of her experience               
 both as a lawyer and as an investigator to convince the committee             
 members why they should not pass CSHB 314.  There are both legal              
 and policy reasons CSHB 314 isn't a good idea.                                
                                                                               
 MS. BRINK said a defense investigator is the functional equivalent            
 of a police officer or a state trooper.  These are the people who             
 (indisc.) by the lawyers to gather facts and to interview witnesses           
 to try to dig deeper into a case to determine what really went on.            
 It is unfair and in violation of equal protection to give the                 
 police tools to use to investigate a case and yet deny those to the           
 defendant who is being accused of a crime.  The police and law                
 enforcement can tape and video tape surreptitiously.  They do not             
 have to announce it or get permission.  Ms. Brink said the reason             
 they can do that is because there is no expectation of privacy when           
 you're talking to an identifiable police officer.  Similarly, there           
 should be no expectation of privacy when you're talking to a                  
 defense investigator.  She said her defense investigator is                   
 required by law to tell the witness that he is the defense                    
 investigator, he works for the defendant, the witness has an                  
 absolute right not to speak to them, and also has the right to have           
 the district attorney present with them.  Therefore, CSHB 314 does            
 nothing to protect the privacy of that witness if the witness is              
 completely aware of who they are speaking to.  CSHB 314 does                  
 unfairly limit the investigators tools to investigate a case.                 
                                                                               
 MS. BRINK pointed out that at least one state court in Louisiana              
 has specifically housed a statute license to be unconstitutional              
 and a violation of equal protection.  Louisiana developed a statute           
 where defense investigators were not permitted to engage in                   
 unannounced  surreptitious tape recordings.  This statute was found           
 to be an arbitrary and unreasonable classification.  The courts               
 ruled that it violated both the federal constitution and state                
 constitution.  Ms. Brink said she firmly believes that if CSHB 314            
 is passed, it will be found to be unconstitutional.                           
                                                                               
 MS. BRINK said there are other states that have dealt with the                
 question of defense investigator tape recording.  At least three              
 states have specifically upheld the defense right to do unannounced           
 tape recording including Arizona, Kentucky and Tennessee.  She said           
 she has been unable to find any state that has introduced similar             
 legislation that was upheld.  She concluded that those are the                
 legal reasons why CSHB 314 should not be passed.                              
                                                                               
 MS. BRINK stated public policy reasons why CSHB 314 should not be             
 passed.  She reiterated the things an investigator must say when              
 talking to a witness or victim.  She stated an investigator or                
 lawyer is often able to go into more depth because of the time                
 constrains often faced by the police.  Police don't often have time           
 for an extensive interview.  Unannounced tape recording fosters               
 openness which would not occur if layers of formality, such as                
 reading of requirements, were implemented.  People perceive that              
 talking with you is wrong if you add those layers of formality.               
 Allowing the defense to tape record fosters honesty and produces an           
 accurate record.  Tape recording protects investigators and defense           
 lawyers.  On a number of occasions a witness will claim that the              
 defense investigator has made them a promise or stated something              
 differently.  These accusations can be refuted with the use of                
 recordings.                                                                   
                                                                               
 MS. BRINK said she could understand that the legislature wanted to            
 protect victims and witnesses, but CSHB 314 does not incorporate              
 the need for an accurate record.  Unannounced recordings are not              
 used in every situation, but in certain cases recordings are                  
 needed.  These cases needing unannounced recording include                    
 undercover informants, snitches, someone who themselves could be              
 charged, a person with a personal grudge, or someone stating                  
 information without any physical cooperation.  CSHB 314 inferred              
 that no oversight over the defense team had occurred.  She added              
 that tape recordings actually eliminates concern over possible                
 irresponsible actions on the part of the defense team.  She said              
 the defense team wants the same privileges as the police have.                
                                                                               
 MS. BRINK said that the defense team, employed by the Public                  
 Defender agency, are bond by the same ethical considerations as               
 lawyers, which are different from the rules that govern police                
 action.  One of the rules is that a defense attorney cannot lie               
 regarding a material fact.  In other words he cannot misrepresent             
 things to a witness.  Police can tell a witness that they found               
 fingerprints or other evidence in an effort to get someone to say             
 something.  The state will also be protected from the taking of any           
 state (indiscernible) contacts.  If a statement by a witness is               
 intended to be used at trial we are required to turn that over to             
 the prosecution.  Most investigators are Public Defender agency               
 investigators and are highly motivated and trained, closely                   
 monitored, educated in the rules governing ethics and fair dealing.           
 A lawyer takes great care in insuring that rules and guidelines are           
 used by the defense team in tape recordings.                                  
                                                                               
 MS. BRINK said under Section 3 which requires written authorization           
 in an effort to take statements from witnesses or victims in sexual           
 offender cases.  This authorization will prevent interviews in                
 those cases.  A written notification inhibits witnesses from                  
 talking openly.  Police realize that when a suspect is read his               
 Miranda Rights, he is less inclined to discuss things with them.              
 The police have developed ways to curtail the reading of the                  
 Miranda Rights, such as telling a suspect that they are free to               
 leave.  She felt that the burden of written notification on the               
 investigator is the functional equivalent of preventing the                   
 investigation in those cases.                                                 
                                                                               
 MS. BRINK said CSHB 314 was designed to increase privacy for the              
 victim or witness with accuracy in fact finding, however she felt             
 that because the defense team is already required to divulge who              
 they were and who they work for and that the witness or victim                
 doesn't have to speak to us, they are already protected.  She                 
 reiterated her main points and urged the committee not to pass CSHB           
 314.                                                                          
                                                                               
 Number 1820                                                                   
                                                                               
 REPRESENTATIVE BUNDE clarified that when defense lawyers or                   
 investigators interviewed a witness or a victim they informed them            
 of the defense attorney's relationship to the defendant and that a            
 district attorney can be present.   He said these things inform the           
 interviewee that this is a serious thing and questioned her belief            
 that if you add the request for tape recording the interview would            
 be squelched.                                                                 
                                                                               
 Number 1850                                                                   
                                                                               
 MS. BRINK said yes, when people are confronted with a tape recorder           
 they are more hesitant to speak.  She said police officers can                
 verify this point and added people will often say, I'll talk with             
 you after you turn off the tape recorder.                                     
                                                                               
 Number 1865                                                                   
                                                                               
 REPRESENTATIVE BUNDE disagreed, because, obviously a victim or                
 witness is aware that this is not a casual conversation and adding            
 a simple statement requesting recording would not change that                 
 relationship.  He questioned the process which lets the                       
 investigator choose his words very carefully while hoping the                 
 victim or witness does not.                                                   
                                                                               
 Number 1920                                                                   
                                                                               
 MS. BRINK said the same thing could be said of police officers.               
 Defense investigators choose their words and the format of their              
 interviews carefully and both defense investigators and police                
 should have the ability to do unannounced tape recording.                     
                                                                               
                                                                               
 Number 1947                                                                   
                                                                               
 REPRESENTATIVE BUNDE asked whether a police officer can, under                
 normal circumstances, surreptitious tape record a witness or                  
 possible suspect.                                                             
                                                                               
 Number 1957                                                                   
                                                                               
 MS. BRINK said if it is obvious that he is a police officer, yes he           
 can.                                                                          
                                                                               
 Number 1962                                                                   
                                                                               
 REPRESENTATIVE BUNDE said he understood that this wasn't the case             
 under the Glass Opinion.  He asked that under CSHB 314, if there              
 was anything to preclude defense investigators from getting a Glass           
 warrant.                                                                      
                                                                               
 Number 1973                                                                   
                                                                               
 MS. BRINK said she believed the Glass Warrant process only applies            
 to law enforcement.                                                           
                                                                               
 Number 1984                                                                   
                                                                               
 LAUREE HUGONIN, Executive Director, Alaska Network on Domestic                
 Violence and Sexual Assault (ANDVSA) was next to testify.  ANDVSA             
 is a state wide coalition of community, domestic violence, and                
 sexual assault programs in Alaska.  Services provided include                 
 shelter, advocacy, crisis intervention, information and referral              
 services for victims seeking assistance in ending the violence                
 perpetrated against them.  ANDVSA supports CSHB 314 and Ms. Hugonin           
 said she wanted to talk about sections of CSHB 314.                           
                                                                               
 MS. HUGONIN said Section 1 expands the number of violations of                
 domestic violence injunctions for which people can be criminally              
 sanctioned.  ANDVSA feels this component reinforces the notion that           
 violence against Alaskan women will no longer be tolerated.                   
 National studies have found that one of the most violent times for            
 women are when they try to escape the violence.  At this time,                
 stalking behavior intensifies and battered women are killed.  She             
 referred to the Anchorage homicide that occurred last September.              
 Domestic violence injunctions are tools which can be used to                  
 provide some protection to victims.  Injunctions are designed to              
 deny the abuser access to the victim which hopefully decreases an             
 elevated risk of violence, allows the victim to be safe in her                
 home, and keeps the abuser from jeopardizing her employment and               
 personal support.  Domestic violence injunctions only work when               
 abusers see them as enforceable.  When abusers see the risks to               
 breaking them outweigh the benefits they chose to not violate the             
 restraining order.  If we do not have enforceable domestic violence           
 injunctions, then the victim is placed in greater risk and have               
 condoned the abusers actions.  Currently, communication is the only           
 item in a domestic violence injunction for which someone can be               
 criminally sanctioned.  Gaining access to the victim, and further             
 domestic violence should also be criminally sanctioned.  She                  
 encouraged support for increased women's safety by supporting                 
 Section 1 of CSHB 314                                                         
                                                                               
 MS. HUGONIN said the remainder of CSHB 314 focuses on taping.  She            
 stated that victims and witnesses should not be coerced or                    
 manipulated into giving statements to the alleged perpetrator's               
 defense counsel or anyone working on his behalf.  The legislature             
 recognized this by creating Alaska Statute 12.61.120C in 1991.                
 This statute states that before speaking to anyone about the crime            
 committed against them, victims have the right to know who the                
 person is and what interest they represent.  Ms. Hugonin feels that           
 victims should be able to know whether the conversation is being              
 recorded.  If the statement by the defense attorneys are correct,             
 that unannounced tape recording produces accuracy in statements               
 given before and during trial, she contended that it should be done           
 in a forthright manner.  A request to record as well as a tape                
 recorder in plain view should be part of the procedure.  Just as              
 defendants should have a right to collect evidence, witnesses                 
 should have the information they give in a safe environment.                  
 Serving justice should not mean tricking people.  HB 314 only                 
 requires honesty about their intentions from a defendant and                  
 investigators and supports the integrity of the criminal justice              
 system.                                                                       
                                                                               
 Number 2150                                                                   
                                                                               
 FRED DEWEY, Defense Attorney, was next to testify.  He has been a             
 defense attorney for 13 years, prior to that he was a law clerk for           
 a judge in Anchorage and worked for the law firm for a short while.           
 Currently he is in private practice doing criminal work.  He                  
 testified against CSHB 314.  He questioned the practical aspects of           
 how the practice of defense attorneys is being legislated and                 
 regulated.  The ethics association under the Alaskan Bar                      
 Association states that defense attorneys cannot misrepresent any             
 facts to a witness.  If defense attorneys are asked any questions             
 they are required to answer them truthfully.                                  
                                                                               
 MR. DEWEY said Section 2, revising the statute, prevents the very             
 thing that Mr. Guaneli spoke about.  Section 2 would prevent the              
 defense lawyer or investigator from turning on the tape recording             
 to document the victim or witness stating that they don't want to             
 speak and the beginning part of the interview might be lost.                  
 Specifically, CSHB 314 is meant to outlaw surreptitious taping, but           
 what it ends up doing is to allow disputes to occur even when there           
 is not surreptitious taping.  If you are going to include the need            
 for notification of taping, then the language must be changed so              
 that you allow unannounced taping so that the consent or denial can           
 be recorded.  He cited examples where the defense attorney has                
 needed this recorded proof to dispute accusations.  He said without           
 recording the sound of the defense lawyers entering the room leaves           
 possibilities for any accusations of threats or promises to be                
 brought forward by the victim or witness.  Tape recording protects            
 the defense lawyer or investigator against these accusations.  It             
 also protects their credibility in defending their client which               
 would be reduced if an accusation were made.  He referenced a                 
 personal example where he was able to refute the accusation by                
 presenting the recording he made.                                             
                                                                               
 MR. DEWEY said the Glass Opinion has to do with surreptitious                 
 taping by informants.  Police officers who don't identify                     
 themselves as anything but a citizen are a target.  In that                   
 situation there is a requirement for a warrant by the state.  In              
 consensual recordings done by one party giving the consent, police            
 officers are allowed to do recording without any warrant whatsoever           
 as long as they have identified themselves as a police officer.               
 The ethics opinion of the Alaskan Bar Association addresses the               
 need for the defense lawyer to identify themselves, who they                  
 represent, and their right of the witness to have someone present.            
 The need was done so, that in a sense, a police officer was                   
 speaking with a witness or a target.  The Alaskan Bar Association             
 opinion does not really change any of that, and CSHB 314 would                
 change it significantly.                                                      
                                                                               
 MR. DEWEY addressed the point of whether defense lawyers are                  
 limited and the state is not.  He said defense lawyers are like a             
 police officer in that they are interested in gathering facts.  The           
 difference between the two, stems from the point that a police                
 officer is interested in gathering facts for a particular purpose.            
 A defense lawyer cannot get a search warrant, cannot ask for a                
 Glass Warrant, cannot surreptitiously represent himself as someone            
 different, cannot make a deal with a willing witness who has the              
 ability to implicate others and cannot offer rewards.                         
                                                                               
 TAPE 96-5, SIDE B                                                             
 Number 000                                                                    
                                                                               
 MR. DEWEY said these are all things available to the state.                   
                                                                               
 CHAIRMAN PORTER requested that Mr. Dewey summarize his testimony              
 for the sake of time.                                                         
                                                                               
 Number 017                                                                    
                                                                               
 MR. DEWEY said that you rarely record a victim of any crime.                  
 Victims are special witnesses that are handled with kid gloves.               
 Defense lawyers are not interested in having the jury perceive                
 themselves as coercing a victim.  Witness or victim coercion would            
 be lessened by the proposed statute taken.  Without taping,                   
 accusations of coercion could be made.  Taping would provide an               
 accurate record.  Surreptitious taping would be done on the rare              
 occasion in which a defense lawyer feels the witness or victim has            
 lied and would be likely to tell another lie.  Recordings can catch           
 differences in the story.  These recordings are given to the                  
 prosecuting attorney to prevent the perjury of testimony in court             
 proceedings.  Taping insures accuracy in our profession which is a            
 goal and accuracy is not considered unethical.                                
                                                                               
 MR. DEWEY referred to the reference Mr. Guaneli made about the                
 ethics committee.  He stated that their concern, stated at the                
 Governor's meeting and at the Alaska Bar Association, related to              
 concern about the process.  They were not making a substantive                
 determination when they go (indiscernible-paper shuffling) on a               
 unanimous basis.  CSHB 314 fixes something that does not need to be           
 fixed.  CSHB 314 creates a lack of protection for witnesses,                  
 process and for the ability to get to the truth.                              
                                                                               
 Number 170                                                                    
                                                                               
 CHAIRMAN PORTER asked if Mr. Dewey was in possession of a letter              
 dated April 20th.                                                             
                                                                               
 Number 179                                                                    
                                                                               
 MR. DEWEY said he was in possession of the ethics committee letter.           
                                                                               
 Number 185                                                                    
                                                                               
 CHAIRMAN PORTER said it appeared to reflect what Mr. Guaneli said             
 and it is signed by 19 members of the ethics committee.                       
                                                                               
 Number 190                                                                    
                                                                               
 MR. DEWEY said he asked the ethics committee to talk with the Board           
 of Governors.  One of the ethics committee members spoke at this              
 meeting last week and came out for the ethics opinion.  The main              
 concern of the ethics committee, at the time they issued that                 
 letter, was that the committee was working on a draft of an opinion           
 for a period of years and the Board of Directors changed direction            
 pursuant to precedents from other states.  This change was done               
 without adequately consulting the ethics committee.  The Board of             
 Governors brought this issue up last week at a hearing and re-voted           
 on the ethics opinion to allow a little more public process.                  
                                                                               
 Number 230                                                                    
                                                                               
 CHAIRMAN PORTER disagreed and said the letter can speak for itself            
 regardless of a tape from the Board of Governor's meeting.                    
                                                                               
 Number 250                                                                    
                                                                               
 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and           
 Sexual Assault, Department of Public Safety, was next to testify.             
 She said she is in favor of CSHB 314.  Section 1 pertains to                  
 temporary restraining orders and she addressed this issue.  She               
 said that when a victim of domestic violence obtains a temporary              
 restraining order she is often told by the police, by the court,              
 and by the victim advocates that this is only a piece of paper.               
 and are encouraged to protect themselves.  She referred to Ms.                
 Hugonin's testimony where temporary restraining orders are not                
 enough.  Experience has taught us that the most effective way to              
 give temporary restraining orders some weight is to allow the                 
 justice system the opportunity to respond quickly to violations of            
 the restraining order.                                                        
                                                                               
 MS. ANDREEN said CSHB 314 expands the number of situations where an           
 arrest can be made for violation of the order and she feels that              
 this is very important in order to increase the long term                     
 protection of victims in Alaska.  She stated support for the second           
 and third parts of the bill.  Alaska has been clear about the need            
 to implement laws and a constitutional amendment ensuring that the            
 rights of victims will be protected.  CSHB 314 is also necessary in           
 order to insure that victims know what it is and that they know               
 what is happening with their statements.  She addressed the                   
 presumption that a victim is going to know that any contact she has           
 will be a part of public record.  She refuted this by saying that             
 victims do not choose to go through the process, it is a stressful            
 period for them.  They are overwhelmed by the different people and            
 agencies, and do not have the legal expertise that one needs in               
 order to understand how these laws and these rights fit together.             
 She supported Ms. Hugonin's statement that if the defense wants an            
 open process and more active information, then be honest and open             
 about what they are doing.                                                    
                                                                               
 Number 360                                                                    
                                                                               
 KEVIN McCOY, Federal Public Defender, Office of Federal Defenders             
 for the District of Alaska, was next to testify.  He said he has              
 practiced law for 18 years mostly in criminal defense.  He                    
 indicated that he received notice two hours ago that this meeting             
 was occurring and had material he was willing to send if members              
 felt it would be helpful.  He said the ethics opinion regarding               
 unannounced tape recording was requested in November 1993.   An               
 investigator from his office was falsely accused of representing              
 himself as an agent of the FBI and harassing a witness.  The                  
 investigator happened to have someone present who could deny those            
 accusations.  It was at that time that the question of unannounced            
 tape recording came up.  He said he has ethics opinions from the              
 state of Arizona, New York, Tennessee, Kentucky, and Mississippi.             
 These opinions authorize unannounced tape recording.  The Supreme             
 Court of Louisiana said it is a violation of equal protection to              
 prohibit authorized law enforcement to surreptitiously record and             
 not allow criminal investigators to do so.                                    
                                                                               
                                                                               
 MR. McCOY said the Alaskan Bar Association proceeded in this matter           
 with care.  In October of 1994, the ethics committee was presented            
 with a draft opinion which authorized surreptitious taping by both            
 civil and criminal investigators.  The ethics committee split on              
 the draft and did not make a recommendation to the Board of                   
 Governors.  In October of 1994, the Board of Governors invited both           
 the proponents and opponents to present their cases.  The                     
 proponents of the opinion contended that if the Board of Governors            
 were unwilling to adopt a broad ethics opinion they should at least           
 adopt one for the criminal defense bar.  A tape of that meeting was           
 made for each member of the Board of Governors.  At the January               
 1995 meeting they considered the issue and directed the ethics                
 committee to draft their opinion along the lines of the one they              
 adopted.  The ethics committee declined to do that and gave no                
 explanation.  During that time, an opinion was presented to the               
 Board of Governors and in March of 1995 it was adopted.  The letter           
 referred to by Chairman Porter indicating that the ethics committee           
 unanimously opposed it was done in order to request                           
 reconsideration.  After full reconsideration, the Board of                    
 Governors decided to maintain the opinion that was adopted, but               
 invited the ethics committee to draft an opinion along the lines              
 the Board of Governors wanted if they wished.  When this was done,            
 a request was made to hold a public comment period on the opinion.            
 Mr. McCoy listed various persons and organizations who were                   
 notified.  The public comment period, held last week, concluded               
 with a Board of Governor's vote.  They voted 8:3 to maintain the              
 opinion.  He encouraged the committee to take careful consideration           
 as you are balancing privacy interests versus the concern for an              
 accurate record.  Despite the public opinion that defense                     
 investigators and criminal lawyers overreach, their main objective            
 is to protect themselves from false allegations and bring integrity           
 to the process.  Tapes will verify all aspects of the interview.              
                                                                               
 MR. McCOY asked the committee to review the Quint Opinion.  This              
 opinion discusses reasonable expectations of privacy.  The decision           
 of Quint was whether you have a reasonable expectation of privacy.            
 In Alaska, you do not have a reasonable expectation of privacy when           
 you are dealing with a uniformed police officer and that officer is           
 asking you about an event of public importance.  When a victim or             
 witness is told that they are being interviewed by a defense                  
 investigator in connection with a particular event, then that                 
 witness or victim no longer has a reasonable expectation of privacy           
 under those circumstances.  He concluded by urging the committee to           
 understand that accuracy is why the use of tape recording is                  
 needed.                                                                       
                                                                               
 Number 665                                                                    
                                                                               
 CHAIRMAN PORTER requested the information offered by Mr. McCoy and            
 explained the procedure of how to send it.                                    
                                                                               
                                                                               
 Number 673                                                                    
                                                                               
 ROBERT BUNDY, United States Attorney, District of Alaska was next             
 to testify.  He said he has been practicing law for 24 years with             
 Alaska Legal Services, private practice, as the Nome District                 
 Attorney, Assistant District Attorney in Anchorage and Assistant              
 Attorney General in Anchorage in anti-trust matters.  In private              
 practice he did litigation and some criminal defense work.  He has            
 been a United States Attorney for two years, a member of the ethics           
 committee for a number of years, and Chairman of the Alaska Wolves            
 Professional Conduct Committee of the Alaska Bar Association.  He             
 stated his experience with interviewing hundreds of witnesses in              
 preparing his defense for clients.                                            
                                                                               
 MR. BUNDY said witnesses and victims are traumatized or upset and             
 do not realize who the players are and therefore need additional              
 standards for protecting their privacy.  He referred to Mr. McCoy's           
 testimony and the original case which centered on the ethics of               
 surreptitious taping.  He said in that case, it quite possible that           
 the investigator referred to himself as from the FPD (Federal                 
 Public Defender) office.  He added that the witness had probably              
 never heard of the FPD, because that witness had never been                   
 involved in the criminal justice system.  He said his point was               
 that people can be told who the person questioning them is and                
 where they are from, but people who are unsophisticated in the                
 criminal justice process are not going to understand what that                
 entails.                                                                      
                                                                               
 MR. BUNDY said people feel their personal privacy is violated when            
 they are tape recorded without their knowledge.  CSHB 314 balances            
 the privacy interests with accuracy.   He stated that prosecuting             
 attorneys are prosecuting those suspects who they feel are guilty.            
 Whereas defense lawyers, if they are doing their job ethically and            
 properly, are doing everything within the law to obtain the best              
 results for their client that they can.  Even if the defense lawyer           
 knows that his client is guilty through a suppressed confession,              
 that defense lawyer is committed in court to cast doubt on his                
 guilt by cross examination.  If obtaining this doubt can be gained            
 through tape recording, then it is done.  Tape recording of a                 
 witness does not have to be revealed and announced until that                 
 witness testifies.                                                            
                                                                               
 MR. BUNDY said the Board of Governors and the Alaska Bar                      
 Association took it upon themselves to make a policy decision that            
 witnesses and victims in criminal cases have a lesser expectation             
 of privacy.  He stated that most of these lawyers have little                 
 experience as prosecuting attorneys and if they work on criminal              
 cases, it is usually on the side of the defense.                              
                                                                               
 MR. BUNDY said it is his experience that if you explain who you are           
 and why you want to make a tape recording, there is very little               
 opposition to it.  The requirement in CSHB 314, that the witness              
 should have the availability of a written transcript of the                   
 recording is exactly the kind of respect a witness or a victim                
 ought to get in our system.                                                   
                                                                               
 MR. BUNDY addressed the testimony opposed to CSHB 314 and their               
 desire to have the same tools that police officers have.  He said             
 the state of Alaska, more so than any other state he knows of,                
 favors the defense more than the prosecution.  The prosecution                
 (indiscernible) to the defense and the Alaska Supreme Court has not           
 placed any of that same requirement on the defense.  Today's                  
 testimony requesting the same tools of police officers is                     
 inaccurate, because the defense gets more.  All of that information           
 gathered by the police is passed on to the defense as well as                 
 information gathered by the prosecution.  CSHB 314 levels the                 
 playing field, making the system have more integrity and accuracy.            
                                                                               
 Number 1074                                                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN asked if a witness or victim would also            
 feel their privacy was violated by a police investigator as well.             
                                                                               
 Number 1091                                                                   
                                                                               
 MR. BUNDY agreed, but added that most people in this country                  
 understand the role of the police.  However, witnesses do not often           
 understand how the criminal justice system works and the role of              
 the defense investigator.                                                     
                                                                               
 Number 1115                                                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN said he felt it was based more on how              
 they were dressed.                                                            
                                                                               
 Number 1121                                                                   
                                                                               
 MR. BUNDY reiterated that police are required to turn the                     
 information and evidence that they collect over to the defense.  He           
 suggested a reciprocal sharing of information between the                     
 prosecution and the defense in order to equal things out.                     
                                                                               
 Number 1135                                                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN asked if the CSHB 314 provision                    
 providing a transcript were enacted, what would be the disadvantage           
 to tape recording rather than simply recounting the conversation.             
                                                                               
 Number 1161                                                                   
                                                                               
 MR. BUNDY said he felt the provision would go a long way assuming             
 that the Alaska court system allows it.  He said that victims and             
 witnesses should be informed that what they say is going to be                
 taken verbatim because they usually do not understand the process             
 These are the reasons why unannounced tape recordings should not be           
 allowed.                                                                      
                                                                               
 Number 1231                                                                   
                                                                               
 CHAIRMAN PORTER closed the public hearing and requested that Mr.              
 Guaneli come forward to answer questions from the committee.                  
                                                                               
 Number 1268                                                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN requested clarity on whether uniformed             
 police officers surreptitiously tape.                                         
                                                                               
 Number 1284                                                                   
                                                                               
 MR. GUANELI believed that a police officer can surreptitiously tape           
 if the person is questioned directly.                                         
                                                                               
 Number 1320                                                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN asked if the Don Smith case related to             
 that, but Mr. Guaneli could not recount that case.                            
                                                                               
 Number 1333                                                                   
                                                                               
 CHAIRMAN PORTER asked if the same allowance was given for a non-              
 uniformed police officer.                                                     
                                                                               
 Number 1335                                                                   
                                                                               
 MR. GUANELI said it is a gray area because people can become                  
 confused easily, whether by intentional or inadvertent methods.  He           
 then addressed the confusion over what the Alaskan Bar Association            
 did or did not do.  He said there is a split in the bar.  The civil           
 defense lawyers do not like the ruling because the feel if criminal           
 defense attorneys can surreptitiously tape, they should be able to            
 do so as well.   He mentioned that Eric Sanders, from the Alaska              
 Trial Lawyers Association, objects to the Alaska Bar Association              
 rule and supports CSHB 314.  He said the focus should not be on               
 what the Alaska Bar Association has done, but should be on policy             
 considerations in the state of Alaska.                                        
                                                                               
 MR. GUANELI said he agreed with Mr. Bundy's testimony and shared              
 the same experience that if people are approached and the process             
 is explained, they do not mind being taped.  He said CSHB 314 might           
 cut down on some of the aggressive tactics used.  He reiterated the           
 constitutional amendment passed in the last general election giving           
 victims the right to dignity and respect in criminal proceedings.             
 At the very minimum this means victims should be allowed to decide            
 whether they are going to be tape recorded.                                   
                                                                               
                                                                               
 Number 1535                                                                   
                                                                               
 CHAIRMAN PORTER asked for clarification on the section dealing with           
 the offenders vacating the premises.  He asked if this just meant             
 removing themselves or if it also included removing their                     
 possessions.                                                                  
                                                                               
 Number 1555                                                                   
                                                                               
 MR. GUANELI said current law allows a condition like that to be               
 imposed on someone.  CSHB 314 says that if the person violates that           
 condition imposed by the court, a penalty can be accrued.  Whether            
 this means themselves and their possessions will depend on the                
 ruling of the court.  The court will inflict conditions or                    
 exceptions and under CSHB 314 this will need to be looked at to see           
 whether a violation has occurred.                                             
                                                                               
 Number 1609                                                                   
                                                                               
 REPRESENTATIVE B. DAVIS asked about the possible violation of equal           
 protection and that this same sort of law might have been                     
 overturned in other states.                                                   
                                                                               
 Number 1625                                                                   
                                                                               
 MR. GUANELI said he is unprepared to comment on rulings in other              
 states at this time.  He said if the wording was such that it                 
 restricted any recording, then he could see that it would hamper              
 the defense which could be ruled unconstitutional.  He added that             
 the constitutional amendment, giving rights to victims, makes the             
 law in the state of Alaska a little different from the law in other           
 states.                                                                       
                                                                               
 Number 1670                                                                   
                                                                               
 CHAIRMAN PORTER agreed with Mr. Guaneli's assessment.                         
                                                                               
 Number 1704                                                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN questioned the testimony, stating the              
 need to record the explanation of what they were going to and the             
 consent to tape record.                                                       
                                                                               
 Number 1738                                                                   
                                                                               
 MR. GUANELI said that in CSHB 314 it states that when approval is             
 granted, you record that the person has been informed and the                 
 victim shall state on the recording that they give their consent.             
 He said he perceived that the process involved engaging in some               
 discussion before the recording begins and then documenting the               
 facts into the taping.  He said that if a person says no, there               
 would not be the need to have a tape recording.                               
 Number 1811                                                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN clarified that you would be going                  
 through that procedure twice.                                                 
                                                                               
 Number 1832                                                                   
                                                                               
 MR. GUANELI said that was correct.  This is the procedure done by             
 state troopers and reporters to find out if the person has any                
 objection.                                                                    
                                                                               
 Representative Al Vezey joins the committee at 2:25 p.m.                      
                                                                               
 Number 1885                                                                   
                                                                               
 REPRESENTATIVE PARNELL, when asked by Chairman Porter, said he had            
 no objections to the proposed amendments.  He requested that on the           
 third amendment, Mr. Guaneli should specifically state his lines              
 mentioned in the testimony.                                                   
                                                                               
 Number 1910                                                                   
                                                                               
 REPRESENTATIVE BUNDE made a motion to accept Amendment 1 located on           
 page four, line six which deletes, "making the contact believes the           
 person being contacted".  Hearing no objections, Amendment 1 was              
 adopted by the House Judiciary Standing Committee.                            
                                                                               
 Number 1937                                                                   
                                                                               
 REPRESENTATIVE BUNDE made a motion to accept Amendment 2 located on           
 page three, line 30 adding another definition so that it reads,               
 "`statement' means a written statement or an oral statement, but              
 does not include a statement recorded in compliance with AS                   
 12.61.120(d) and (e)".  He added that the drafter of CSHB 314 can             
 reformat as appropriate.                                                      
                                                                               
 Number 1960                                                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli to tell the committee            
 the significance of Amendment 2.                                              
                                                                               
 Number 1968                                                                   
                                                                               
 MR. GUANELI said that the current drafting of CSHB 314, requests              
 both verbal consent recorded on the tape, but that you also get               
 written  consent if it is the victim or a witness of sexual                   
 offense.  Amendment 2 seeks to avoid that double requirement.                 
                                                                               
 Number 2034                                                                   
                                                                               
 CHAIRMAN PORTER said hearing no objection Amendment 2 was adopted             
 by the House Judiciary Standing Committee.                                    
 Number 2048                                                                   
                                                                               
 REPRESENTATIVE BUNDE requested clarification on Amendment 3.                  
                                                                               
 Number 2068                                                                   
                                                                               
 MR. GUANELI said the admissibility criteria should be added to both           
 sections either by deleting it from one section or adding it to               
 both.                                                                         
                                                                               
 REPRESENTATIVE BUNDE made a motion to adopt Amendment 3 which                 
 deletes lines 20 to 23 on page three and add where appropriate the            
 statement that is included.  Hearing no objection Amendment 3 was             
 adopted by the House Judiciary Standing Committee.                            
                                                                               
 Number 2110                                                                   
                                                                               
 CHAIRMAN PORTER supported CSHB 314 and mentioned that this is the             
 first application of the constitutional amendment.                            
                                                                               
 REPRESENTATIVE BUNDE agreed with Chairman Porter.  He discussed               
 horror stories derived from surreptitious taping and supported CSHB           
 314.                                                                          
                                                                               
 Number 2300                                                                   
                                                                               
 REPRESENTATIVE B. DAVIS stated concern, that because of the                   
 combining of HB 314 and HB 326 into CSHB 314, HB 314 would be lost            
 because the combined bill might be overturned due to constitutional           
 issues.                                                                       
                                                                               
 Number 2350                                                                   
                                                                               
 CHAIRMAN PORTER said he thought it was unlikely, but if a portion             
 of the bill was declared unconstitutional, that part would be                 
 dropped and the remaining portion would be left intact.                       
                                                                               
 REPRESENTATIVE B. DAVIS withdrew her concern and did not have any             
 objection to CSHB 314.                                                        
                                                                               
 Number 2374                                                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN said he believed the process required a            
 two-thirds vote, a bill would still move forward with a majority              
 vote, but without changes in the court rules.                                 
                                                                               
 CHAIRMAN PORTER said it moves forward and does go into law, as it             
 only expresses the legislature's intent and desire as opposed to              
 two-thirds to change a court vote.                                            
                                                                               
 Number 2411                                                                   
                                                                               
 REPRESENTATIVE FINKELSTEIN said he does feel that the legislature             
 needs to address actions by the Board of Governors, especially when           
 there are split feelings on it and there is a constitutional                  
 amendment on it.                                                              
                                                                               
 TAPE 96-6, SIDE A                                                             
 Number 000                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN questioned whether there was any harm in           
 having an accurate record occur.  He mentioned his experience with            
 reporters who have told him that it is very difficult to get people           
 to speak the same way if they are being tape recorded.                        
                                                                               
 Number 104                                                                    
                                                                               
 CHAIRMAN PORTER said that the ability for the witness or the victim           
 to say no is an accurate record.  He said surreptitious taping is             
 a violation to the dignity and fairness to the victim or witness.             
                                                                               
 Number 150                                                                    
                                                                               
 REPRESENTATIVE FINKELSTEIN mentioned that the need for taping when            
 the victim or witness is not telling the truth.                               
                                                                               
 Number 159                                                                    
                                                                               
 REPRESENTATIVE TOOHEY said she would prefer the use of a tape                 
 recorder by reporters.  She said she supported CSHB 314 and any               
 bills supporting victims.  She made a motion to move CSHB 314 out             
 of the House Judiciary Standing Committee with a zero fiscal note             
 and individual recommendations.  Hearing no objections CSHB 314 was           
 moved out of committee.                                                       
                                                                               
 HB 333 - BAR MEMBERSHIP:PUBLIC DEFENDER/ADVOCATE                          
                                                                             
 Number 250                                                                    
                                                                               
 REPRESENTATIVE PARNELL, sponsor of HB 333, said HB 333 gives the              
 Public Defender agency and the Office of Public Advocacy (OPA) the            
 same benefit that the Department of Law (DOL).  Currently, the DOL            
 has the ability to hire a person who is taking the bar but has not            
 passed the bar.  HB 333 gives the person hired, ten months                    
 following the commencement of their employment, to become a                   
 licensed attorney in the state of Alaska.  HB 333 attempts to                 
 forward more help in the Public Defenders office and in OPA.                  
                                                                               
 Number 411                                                                    
                                                                               
 REPRESENTATIVE JOE GREEN asked for an explanation of the purpose of           
 HB 333.                                                                       
 Number 437                                                                    
                                                                               
 REPRESENTATIVE PARNELL said the purpose was to afford more help to            
 the Public Defender office as well as OPA.  He added that law                 
 schools are all outside the state of Alaska and so new graduates              
 are currently not able to work for OPA or the Public Defender                 
 agency until they pass the bar exam.                                          
                                                                               
 Number 480                                                                    
                                                                               
 REPRESENTATIVE GREEN asked if HB 333 encourages non-Alaskans from             
 moving up to Alaska and displacing Alaskans educated in the state.            
                                                                               
 Number 525                                                                    
                                                                               
 REPRESENTATIVE PARNELL said it works both ways.  He said an                   
 attorney cannot practice law unless they are licensed in Alaska.              
 HB 333 allows them to practice law under strict supervision by the            
 Public Defender agency and OPA for a limited period of time.                  
                                                                               
 Number 545                                                                    
                                                                               
 REPRESENTATIVE BUNDE asked and it was confirmed that this levels              
 the playing field between the public defender agency as well as OPA           
 and the prosecutors office.                                                   
                                                                               
 Number 578                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked if they could practice before the bench            
 and was told that it would be addressed in different testimony.  He           
 then asked why the ten month limitation.                                      
                                                                               
 Number 601                                                                    
                                                                               
 REPRESENTATIVE PARNELL said ten months give the person the                    
 opportunity to take the bar twice and obtain results of passage.              
                                                                               
 Number 636                                                                    
                                                                               
 REPRESENTATIVE VEZEY asked if the average time for a lawyer to pass           
 the bar was two times.                                                        
                                                                               
 Number 648                                                                    
                                                                               
 REPRESENTATIVE PARNELL said that it averages one time, but it is              
 not unusual to take the bar twice.                                            
                                                                               
 Number 679                                                                    
                                                                               
 JOHN SALEMI, Director, Public Defender Agency, Department of                  
 Administration was next to testify.  He said HB 333 levels the                
 playing field, but more importantly it expands the potential pool             
 of applicants so that the quality of lawyers can be enhanced.  He             
 added that creating a "buyers market" might actually reduce                   
 expenses.  He said these factors are especially important in                  
 regards to the rural areas of the state.                                      
                                                                               
 MR. SALEMI said applicants wishing to do Public Defender work must            
 currently sign up for the Alaska Bar at a cost of $700, take a bar            
 review course to familiarize themselves with Alaska law at a cost             
 of $1100, in addition to travel expenses.  After this expense,                
 there is a waiting period of three months to get the results from             
 the Alaska bar.  If they have passed, there might not be an                   
 available position.                                                           
                                                                               
 MR. SALEMI said that if the applicant pool could be opened, entry             
 level positions could be reduced from a range 19 position to a                
 Range 16 position at a considerable savings to the public defender            
 agency.                                                                       
                                                                               
 Number 1015                                                                   
                                                                               
 REPRESENTATIVE VEZEY asked if these employees will be able to                 
 practice before the bench.                                                    
                                                                               
 Number 1027                                                                   
                                                                               
 MR. SALEMI said they would be able to just as the DOL staff lawyers           
 are able to do under the present statutory scheme.  He said all of            
 the public defender work is done before the court as opposed to               
 other work done by law firms.                                                 
                                                                               
 Number 1045                                                                   
                                                                               
 REPRESENTATIVE VEZEY suggested repealing the statute so that no               
 public defender staff need pass the bar.                                      
                                                                               
 Number 1065                                                                   
                                                                               
 MR. SALEMI responded that it was possible.  He said Alaska Legal              
 Services Corporation waives the bar requirement for two years but             
 said there are good reasons for professional licensing.                       
                                                                               
 Number 1109                                                                   
                                                                               
 REPRESENTATIVE VEZEY said in previous years, lawyers were taught in           
 an apprentice type situation.  He questioned the unnecessary                  
 expense of the bar requirement.                                               
                                                                               
 Number 1156                                                                   
                                                                               
 MR. SALEMI mentioned the evolution of law such as accredited law              
 schools and bar membership.  He said he felt that people have these           
 requirements showed their confidence in Alaska law and the overall            
 practice of law.  He felt there should be a balance between fiscal            
 conservatism with obtaining competence and quality of                         
 representation.                                                               
                                                                               
 Number 1220                                                                   
                                                                               
 REPRESENTATIVE VEZEY stated that he had never heard where there               
 were not enough lawyers to form a sizable applicant pool.  He also            
 said some representation has got to be better than no                         
 representation.                                                               
                                                                               
 Number 1255                                                                   
                                                                               
 MR. SALEMI said that everyone charged with a crime is entitled to             
 council if he cannot afford to hire council in the private market.            
 HB 333 does not expand the number of staff of the public defender             
 agency, but merely increases the pool of applicants which hopefully           
 would pay less in recruitment costs.                                          
                                                                               
 Number 1295                                                                   
                                                                               
 REPRESENTATIVE VEZEY asked if that was the same as having more                
 staff for less money.                                                         
                                                                               
 Number 1302                                                                   
                                                                               
 MR. SALEMI said he could only fill the positions which the                    
 legislature allows.                                                           
                                                                               
 Number 1315                                                                   
                                                                               
 REPRESENTATIVE VEZEY said he could envision a scenario of asking              
 for more positions from the legislature under the fact that it                
 could be done at no extra cost.                                               
                                                                               
 Number 1336                                                                   
                                                                               
 MR. SALEMI said the number of staff is allotted in proportion to              
 the size of the caseload and not because of budgetary discretions.            
                                                                               
                                                                               
 Number 1350                                                                   
                                                                               
 BRANT McGEE, Director, Office of Public Advocacy, Department of               
 Administration, was next to testify.  He said a liability issue was           
 raised and he referred to Section 3 of HB 333 which addresses OPA.            
 He said it addressed the issue.  The first sentence in Section 3              
 requires that all contractors have to be admitted to the bar, while           
 the second sentence says OPA employs don't have to admitted to the            
 bar until ten months later.  The distinction is important and                 
 illustrates that liability concerns in this field are minimal.                
 Contractors who provide work in cases where OPA has a conflict of             
 interest, where the OPA would not be able to directly supervise               
 them.  He said the second sentence does not create any greater                
 liability than the current situation where new lawyers are hired              
 who also require strict supervision.                                          
                                                                               
 Number 1424                                                                   
                                                                               
 MR. McGEE said he could see no downside to CSHB 314 and it will be            
 helpful when applicants are in the situation described by                     
 Representative Parnell.                                                       
                                                                               
 Number 1438                                                                   
                                                                               
 REPRESENTATIVE VEZEY asked for clarification of the wording of                
 Section 3.                                                                    
                                                                               
 Number 1460                                                                   
                                                                               
 MR. McGEE said that Section 3 states that only an attorney admitted           
 to practice can contract with OPA.  These are independent                     
 contractors who preform work outside the major population centers             
 and provide representation where OPA has a conflict of interest.              
 They are independent contractors, in that OPA does not have the               
 ability to direct their performance and duties in connection with             
 particular cases.  This is the reason that HB 333 does not extend             
 to those contracted attorneys.  The second sentence of Section 3              
 refers to the OPA lawyers who are supervised daily on a direct                
 basis and does address liability concerns regarding HB 333.                   
                                                                               
 Number 1505                                                                   
                                                                               
 REPRESENTATIVE VEZEY said he reads HB 333 as "they can't be an                
 attorney employed by your office unless they are admitted to the              
 practice of law ten months after they are hired."                             
                                                                               
 Number 1523                                                                   
                                                                               
 MR. McGEE said this is correct.  He added that a person not passing           
 the bar exam within ten months would be terminated from employment            
 with OPA.  If they pass the bar exam, then they can become a full             
 fledged OPA staff attorney.  HB 333 creates a new class of lawyers            
 outlined by Representative Parnell and Mr. Salemi.                            
                                                                               
 Number 1586                                                                   
                                                                               
 REPRESENTATIVE BUNDE reiterated what Mr. McGee said and asked if he           
 understood correctly.                                                         
                                                                               
 Number 1610                                                                   
                                                                               
 MR. McGEE said the distinction between contracted attorneys and the           
 OPA staff is a wise distinction.                                              
 Number 1640                                                                   
                                                                               
 REPRESENTATIVE BUNDE made a motion to move HB 333 with individual             
 recommendations and a zero fiscal note.  Hearing no objections HB             
 333 was moved from the House Judiciary Standing Committee.                    
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 There being no further business to come before the House Judiciary            
 Standing Committee, Chairman Porter adjourned the meeting at 2:58             
 p.m.                                                                          
                                                                               

Document Name Date/Time Subjects