Legislature(1995 - 1996)
02/22/1995 01:07 PM House JUD
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 22, 1995
1:07 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
COMMITTEE CALENDAR
*HB 138: "An Act relating to crime stoppers organizations;
to information received by crime stoppers
organizations and to the issuance of search warrants
based upon that information; and amending Alaska Rule
of Criminal Procedure 37 and Alaska Rule of Evidence
509."
HEARD AND HELD
*HB 52: "An Act relating to the admissibility into evidence
of deoxyribonucleic acid (DNA) profiles in civil and
criminal proceedings; amending Rules 702(a) and 703
of the Alaska Rules of Evidence to modify the rule
relating to the basis or foundation for the
admissibility of expert opinion testimony that is
based on scientific evidence as it relates to DNA
profile evidence; and amending Rules 401, 403, and
705 of the Alaska Rules of Evidence."
PASSED OUT OF COMMITTEE
*HB 108: "An Act relating to claims on permanent fund dividends
for defaulted public assistance overpayments."
PASSED OUT OF COMMITTEE
HJUD - 02/22/95
*HB 25: "An Act revising Rule 16, Alaska Rules of Criminal
Procedure, relating to discovery and inspection in
criminal proceedings, to adopt the comparable federal
rule."
SCHEDULED BUT NOT HEARD
(*First public hearing)
WITNESS REGISTER
REPRESENTATIVE GARY L. DAVIS
Alaska State Legislature
State Capitol, Room 420
Juneau, AK 99801-1182
Telephone: (907) 465-2693
POSITION STATEMENT: Sponsor of HB 138
PHIL NASH, Attorney
Chairman of Central Peninsula (Kenai) Crime Stoppers
110 South Willow, No. 104
Kenai, AK 99611
Telephone: (907) 283-7514
POSITION STATEMENT: Testified in favor of HB 138
NORMAN STUARD
P.O. Box 457
Soldotna, AK 99669
Telephone: (907) 262-1705
POSITION STATEMENT: Testified against HB 138
BOB KINTZELE, Legal Investigator
P.O. Box 3313
Kenai, AK 99611
Telephone: (907) 283-9232
POSITION STATEMENT: Testified against HB 138
SUSAN ROSS, Paralegal
P.O. Box 198
Kasilof, AK 99610
Telephone: (907) 262-5479
POSITION STATEMENT: Testified against HB 138
ARWIN SCHMIDT
P.O. Box 3045
Kenai, AK 99611
Telephone: (907) 283-4594
POSITION STATEMENT: Testified against HB 138
SEYMOUR MILLS
P.O. Box 51
Sterling, AK 99672
Telephone: Not Available
POSITION STATEMENT: Testified against HB 138
LEONARD EFTA
P.O. Box 353
Kenai. AK 99611
Telephone: (907) 283-7670
POSITION STATEMENT: Testified against HB 138
GERALD MCQUEEN
P.O. Box 7048
Nikiski, AK 99635
Telephone: (907) 283-5619
POSITION STATEMENT: Testified against HB 138
BARBARA BRINK, Deputy Director
Alaska Court System, Public Defender Agency
900 West Fifth, Suite 200
Anchorage, AK 99501
Telephone: (907) 264-4400
POSITION STATEMENT: Testified against HB 138
RANDALL BURNS, Executive Director
Alaska Civil Liberties Union
P.O. Box 201844
Anchorage, AK 99520
Telephone: (907) 276-2258
POSITION STATEMENT: Testified against HB 138 and HB 52
JAMES MESSICK, Crime Prevention Specialist
Wasilla Police Department
290 East Herning Avenue
Wasilla, AK 99687
Telephone: (907) 373-9077
POSITION STATEMENT: Testified in support of HB 138
WILLETT BUSHNELL, President
Mat-Su Crime Stoppers
P.O. Box 870355
Wasilla, AK 99687
Telephone: (907) 376-4195
POSITION STATEMENT: Testified in support of HB 138
CAPTAIN TED RUDDELL, Operations Commander
Division of Fish and Wildlife Protection
Department of Public Safety
5700 East Tudor Road
Anchorage, AK 99507-1225
Telephone: (907) 269-5589
POSITION STATEMENT: Provided information on HB 138
DEAN GUANELI, Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-3428
POSITION STATEMENT: Provided information on HB 138 and HB 52
LISA MOCK, Legislative Aide
Representative Joe Green
State Capitol, Room 24
Juneau, AK 99811-1182
Telephone: (907) 465-4931
POSITION STATEMENT: Introduced CSHB 52
LINDA BRANCHFLOWER, Detective
Alaska Peace Officers Association
1443 West Northern Lights Blvd.
Anchorage, AK 99501
Telephone: (907) 277-0515
POSITION STATEMENT: Testified in favor of CSHB 52
ARVID BJORNTON, Sergeant
Alaska Court System, Public Defender Agency
Sexual Assault Division
900 West Fifth, Suite 200
Anchorage, AK 99501
Telephone: (907) 264-4400
POSITION STATEMENT: Testified in favor of CSHB 52
ELMER LINDSTROM, Special Assistant
Office of the Commissioner
Department of Health and Social Services
P.O. Box 110601
Juneau, AK 99811-0601
Telephone: (907) 465-3030
POSITION STATEMENT: Testified in favor of HB 108
PREVIOUS ACTION
BILL: HB 138
SHORT TITLE: INFORMANT RELIABILITY/CRIME STOPPERS
SPONSOR(S): REPRESENTATIVE(S) G.DAVIS
JRN-DATE JRN-PG ACTION
02/01/95 198 (H) READ THE FIRST TIME - REFERRAL(S)
02/01/95 198 (H) JUDICIARY
02/15/95 (H) JUD AT 01:00 PM CAPITOL 120
02/22/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 52
SHORT TITLE: DNA EVIDENCE IN CIVIL AND CRIMINAL TRIALS
SPONSOR(S): REPRESENTATIVE(S) GREEN,Toohey
JRN-DATE JRN-PG ACTION
01/06/95 34 (H) PREFILE RELEASED
01/16/95 34 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 34 (H) JUDICIARY, FINANCE
01/27/95 155 (H) SPONSOR SUBSTITUTE INTRODUCED-
REFERRALS
01/27/95 156 (H) JUD, FIN
01/27/95 162 (H) COSPONSOR(S): TOOHEY
02/15/95 (H) JUD AT 01:00 PM CAPITOL 120
02/22/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 108
SHORT TITLE: USE PFD'S TO RECOVER WELFARE OVERPAYMENTS
SPONSOR(S): REPRESENTATIVE(S) TOOHEY,Bunde
JRN-DATE JRN-PG ACTION
01/20/95 102 (H) READ THE FIRST TIME - REFERRAL(S)
01/20/95 102 (H) JUDICIARY, FINANCE
02/22/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 25
SHORT TITLE: CRIMINAL DISCOVERY RULES
SPONSOR(S): REPRESENTATIVE(S) PARNELL,Porter,Green,Bunde
JRN-DATE JRN-PG ACTION
01/06/95 27 (H) PREFILE RELEASED
01/16/95 27 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 27 (H) JUDICIARY, FINANCE
01/18/95 75 (H) COSPONSOR(S): GREEN
01/19/95 89 (H) COSPONSOR(S): BUNDE
01/27/95 (H) JUD AT 01:00 PM CAPITOL 120
01/27/95 (H) MINUTE(JUD)
01/30/95 (H) JUD AT 01:00 PM CAPITOL 120
01/30/95 (H) MINUTE(JUD)
02/01/95 (H) FIN AT 01:30 PM HOUSE FINANCE 519
02/06/95 (H) JUD AT 01:00 PM CAPITOL 120
02/06/95 (H) MINUTE(JUD)
02/08/95 (H) JUD AT 01:00 PM CAPITOL 120
02/08/95 (H) MINUTE(JUD)
02/13/95 (H) JUD AT 01:00 PM CAPITOL 120
02/13/95 (H) MINUTE(JUD)
02/15/95 (H) JUD AT 01:00 PM CAPITOL 120
02/17/95 (H) JUD AT 01:00 PM CAPITOL 120
02/22/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-15, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:07
p.m. on February 22, 1995. A quorum was present. The meeting was
teleconferenced to Anchorage, Kenai, and Matanuska-Susitna.
CHAIRMAN BRIAN PORTER stated that the following bills would be
heard: HB 138, SSHB 52 and HB 108. He said HB 25 was scheduled,
but would not be heard, as the committee substitute was not
available yet. He called Representative Gary Davis to come forward
and introduce HB 138.
HJUD - 02/22/95
HB 138 - INFORMANT RELIABILITY/CRIME STOPPERS
REPRESENTATIVE GARY L. DAVIS introduced the bill and gave the
following Sponsor Statement:
"The intent of this bill is clearly identified, so there is an
understanding of what the intent of the legislation of reliability
of Crime Stopper tips to the same extent that is provided to tips
from people who are willing to identify themselves to the police,
and the defendant, called `citizen informants.'
"In Section 2 search warrants may be issued based on information
received from a Crime Stopper organization and confidentiality
maintained. This bill will establish one set procedure for all
courts to follow in reviewing Crime Stopper reports.
"When the court determines a review of the records is allowed the
Crime Stopper information involving the identity of an informant is
removed.
"In Section 3, HB 138 allows the Crime Stopper Organization to be
exempt from registration for fund raising.
"This legislation provides a means for statutory recognition of the
Crime Stoppers organization.
"This bill gives the trial courts and the supreme court some
guidance relative to the underlying intent when they deliberate on
cases coming before them on the issue of reliability of crime
stopper informant information."
Number 130
PHIL NASH, Chairman, Central Peninsula Crime Stoppers, testified
via teleconference. He described the organization as being a
nonprofit group that started in 1983. This branch provides for the
area of Kenai, Soldotna and Homer. The basic theory of Crime
Stoppers, both locally and internationally, is for citizens to
volunteer time through a nonprofit corporate structure;
facilitating a method of gathering information regarding criminal
activity, so the police can use that information to solve crimes
without jeopardizing the people who gave the information, or their
families. The basic problem at this time stems from a 1973 Supreme
Court case, which had to do with arrest warrants. The court said
a citizen informant has a degree of reliability that a criminal
informant will not have. The theory assumes that there is some
kind of honor among thieves. This legislation would not change the
arrest warrant issue at all. That is a matter for the court. This
bill would give crime stopper informants the same degree of
reliability presently given to citizen informants. An important
thing to look at is that from a citizen informant, the police must
still have certain details, information that must be verified
before they can proceed. Some informants do not want to expose
themselves and their families to some type of adverse response by
a criminal element, by identifying themselves.
Number 210
NORMAN STUARD testified via teleconference. He said, "If the
system ain't broke, don't fix it." He was against the bill. He
felt the current system was working very well. Stating the
presumption of reliability of an informant will not be removed from
the court documents, lies in the face of the Fourth Amendment,
which gives you the right to be faced by your accuser. This will
be challenged in the Supreme Courts at a high cost to the state.
He wondered about the political affiliation of someone who would
support this legislation.
REPRESENTATIVE CON BUNDE asked if Mr. Stuard's opinion was base on
actual experience or involvement with crime stoppers, giving him a
level of expertise, or whether he was just an interested observer.
Number 275
MR. STUARD replied no, he had not been involved with crime
stoppers.
Number 290
REPRESENTATIVE BETTYE DAVIS asked about Mr. Stuard's comment on a
person having the right to face his accuser. A lot of the people
reporting to crime stoppers do not want to be identified. How
then, do you handle that?
Number 305
CHAIRMAN PORTER said there would be testimony further describing
the elements of self-informant testimony.
Number 315
BOB KINTZELE, Legal Investigator, testified via teleconference,
that he has worked with numerous criminal defense attorneys and
crime stoppers. He explained that the crime stopper program,
though said to be a nonprofit organization, is actually operated
out of the Kenai Police Department by a paid city employee. It is
an agency of the police department. They would like it to be
something other than what it is, but they operate out of the police
department. They can be held to a different standard, because they
call themselves nonprofit. The main motivation for reporting
people with marijuana operations, is competition. If someone else
wants the business, then they will report the person who is growing
it, so they can eliminate the competition. That is not a pure
motive. That is greed. The idea is to get a quick search warrant,
the police are allowed to do something a little bit too easily,
there is opportunity for abuse. That should be looked at real
strongly. He could not see any court anywhere allowing this.
Number 350
SUSAN ROSS, a paralegal, testified via teleconference and stated
that the crime stopper informant reliability was proven unreliable
by a study conducted on the Peninsula. Most of the anonymous tips
were perpetrated on innocent victims because the information was
incorrect. She felt this legislation would cause a shift, where
instead of protecting the constitutional rights of the innocent, it
would protect the anonymity of the crime stopper informant. She
insisted the committee members vote no.
Number 430
ARWIN SCHMIDT testified via teleconference. He felt that crime
stoppers aids people who have the need to harass other people. He
had been turned in to crime stoppers through an anonymous tip, but
thought he knew who gave the tip. The police then got a warrant to
search his house. Three officers in plain clothes came to break
down his door, bringing the National Guard, a four-wheel drive
vehicle, and two armored cars with them. His rottweiler could not
tell they were cops, and neither could he. The dog almost ate one
of them. He could not understand how crime stoppers believe they
are doing such a service to the community when they are acting on
tips they cannot verify.
Number 460
SEYMOUR MILLS, a Sterling resident, testified via teleconference.
He pointed out that in the oath of office everyone takes when they
go to work for the legislature or any other member of office, they
swear to uphold the Constitution. As far as his area of expertise
goes, he can read. The United States Constitution is very clear
and anyone can read it. Article 4 guarantees against unreasonable
searches and seizures, and requires that any warrants issued have
to have probable cause. Article 5 guarantees due process against
probable cause affidavits. Article 6 gives you the right to be
confronted by your accuser. Article 8, says cruel and unusual
punishment shall not be inflicted. When someone breaks down your
door and puts you in fear of loss of life and property, that is
cruel and unusual punishment, when you have never even been
convicted of anything. Articles 9 and 10 say all the rights not
given to the government belong to the people.
Number 500
LEONARD EFTA testified via teleconference that he opposed the bill
and would be scared if this legislation passed.
Number 505
REPRESENTATIVE BUNDE asked if the people in Kenai were opposed to
the crime stoppers in general, as well as the proposed change.
The consensus seemed to be that yes, they were opposed to crime
stoppers.
Number 525
GERALD MCQUEEN, representing Patricia Mann testified via
teleconference, describing his experience. He was working last
year when policemen came and raided his home. They told his
girlfriend their home had been under surveillance for the last year
and a half, and that they had an arrest and search warrant for this
particular individual who no longer lived there. She told the
gentleman that individual no longer lived there, and had not lived
there for some time. He was particularly persistent, in the fact
that she asked for a search warrant and there was no search
warrant. He intimidated her to the point where she finally let him
into the house with the purpose to search their basement. His
concern was that the police had no idea what was going on. If
there had been surveillance on their home for the last year and a
half, they would have noticed somebody had moved out eight months
ago, and that they were living in there now. The vehicles are
completely different and he is now paying the taxes and utility
bills as well. Their investigation was not only negligent, but
preposterous that they even had one. He found it hard to believe
his house had been under surveillance for a year and a half, and
they had not even noticed someone had moved to a different
residence. He said he can hardly leave his girlfriend at home to
go to work anymore, or she goes into hysteria. Without a
legitimate signed affidavit with a witness and evidence, these
searches are preposterous. They invade people's privacy. His
girlfriend is now scared and intimidated by our own legal system.
He called the police officer's superior who informed him this was
a crime stopper tip, and that his house had not been under
surveillance. The cop had told out and out blatant lies. This
legislation leaves the cops open to do whatever they want, and then
cover it up later under a crime stopper bill.
Number 575
BARBARA BRINK, Deputy Director, Alaska Court System, Public
Defender Agency, testified via teleconference. She said she had a
great deal of experience with search warrants she wished to share
with the committee. This bill is not only constitutionally
defective, it is really a bad idea. Citizens have the right to
privacy, and the right to be free from intrusions and searches by
the police. They may come into your home when they have a search
warrant. The procedure to obtain a search warrant is very simple.
The police go to a neutral person, a magistrate, and provide
whatever information they have to show there is probable cause to
believe the person is involved in criminal activity, and that the
evidence of that particular crime will be found at that location.
That is a pretty low standard of proof they have to show, that
"probably" there is some evidence there. Search warrants are
routinely granted. People who identify themselves can be presumed
reliable. We do not want to permit searches when the information
is unreliable, false, incorrect, or unsubstantiated, or motivated
by some desire to wrongly accuse someone, or to make some sort of
profit. It is not too much to ask that the information be provided
in a reliable way. This bill defies common sense. As the law
stands now, confidentiality of a witness can be granted if the
state has good reason.
REPRESENTATIVE BUNDE asked if the courts have allowed an anonymous
tip to be the basis for a search warrant.
MS. BRINK answered absolutely. Anonymous tipsters sometimes want
to remain anonymous. All that needs to be shown is that the person
has a basis for the information they are giving, and that if they
are a criminal person, their information is reliable. That is all
they have to show, and it can be established by showing a lot of
detailed corroboration. Search warrants based on anonymous tips
are upheld all the time.
Number 700
RANDALL BURNS, Executive Director, Alaska Civil Liberties Union
(ACLU), testified via teleconference that he felt the testimony
given by Kenai residents to be indicative of the ACLU's concerns.
He was concerned about taking the informant reliability decision
away from the magistrate or judge. Removing that check by the
nonpartisan entity would be unconstitutional. The police should
not be in the position of making a credibility determination.
Another concern is the question of requiring an order to find out
the evidence in the basis of a search warrant. A right of
confrontation requires that a defendant know his or her accuser and
be able to defend against the charges. The ACLU believes they
should have to ask the court for that information. He asked that
the committee not pass this bill.
Number 720
JAMES MESSICK, Crime Prevention Specialist, Wasilla Police
Department, testified via teleconference. He has served on the
Crime Stoppers Board and was in full support of the bill. He felt
the objections to it reflect a misunderstanding of how crime
stoppers works. It is typically not part of a law enforcement
agency. It is intended to be made up of citizens within the
community. No one wants to support a bill that would allow abuses
by the police officers. This program has proven to be one of the
most cost effective ways for law enforcement to obtain information
they would not otherwise be able to obtain. As far as giving a tip
with a wrong motive, there are those wanting to get rid of their
grow operation competitors, but most of the calls received are from
people who simply do not want to get involved. If this bill has
defects, fix them, but then move onward.
Number 765
REPRESENTATIVE FINKELSTEIN asked Mr. Messick what problems they are
trying to fix regarding crime stoppers in the Mat-Su area.
Number 775
WILLETT BUSHNELL, President of Mat-Su Crime Stoppers, Wasilla,
testified via teleconference. He said they had challenges where
they would try to subpoena crime stopper records and notes that are
taken when a call comes in. They also try to obtain computer
records containing statistics and so forth. There are Alaska Court
cases on these issues in which they have prevailed. However, they
have also had to have extreme cooperation by the prosecutors. In
several cases where defense attorneys have subpoenaed our records,
prosecutors have dropped the case, rather than endangering the
informant or the crime stopper program. Because of that
technicality, they support this bill. Crime stopper legislation
has been passed in 14 states and in Guam. Crime stoppers tries to
overcome the attitude of apathy by offering rewards. Last year,
through this program, they recovered $76,000 in stolen property and
$4,000,000 in narcotics; $8,500 in fines were levied, we had 50
arrests, and closed 82 cases. We offered $10,400 in rewards, and
only paid out 30 percent of that. Most people that call in with
tips do not want the reward money. All of this was done with no
tax dollars. He supports the bill.
Number 850
CAPTAIN TED RUDDELL, Department of Public Safety, Division of Fish
and Wildlife Protection, testified via teleconference. He noted he
was not scheduled to speak on the official position of the
Department of Public Safety on this bill, but was available for
questions on the Division of Fish and Wildlife's program which is
similar to the crime stopper program. It is called the Alaska Fish
and Wildlife Safeguard Program, and it is like a crime stopper
program.
Number 855
REPRESENTATIVE FINKELSTEIN asked if this program was under the
Department of Public Safety.
MR. RUDDELL said no. The program was a private nonprofit
organization dedicated to promoting statewide fish and wildlife
protection. It has been going on since 1984 and has a 24-hour toll
free hot line. They have worked over 2,000 cases since 1984 on
information received over this hot line.
TAPE 95-15, SIDE B
Number 000
REPRESENTATIVE FINKELSTEIN asked Mr. Ruddell if they were just as
able to take advantage of anonymous tips that get called to that
organization, as if they were called to normal state law
enforcement agencies. Are you able to make good use of these
anonymous tips?
Number 030
MR. RUDDELL answered yes, they are. They use the same standard of
verifying information, initiating where Fish and Wildlife Troopers
need to respond at a given time. It provides a little bit of
security for people who are reluctant to go through the normal hot
line. This 24-hour hot line is gaining nationwide popularity.
Number 080
REPRESENTATIVE FINKELSTEIN asked if they have, in general, had
success in getting search warrants based on these anonymous tips.
Number 085
MR. RUDDELL answered the number of search warrants they have
obtained based on these anonymous tips has been very small, but
each time, the information was not critical in obtaining a search
warrant. What the information did was direct the efforts of the
officers to obtain more probable cause, in order to get the search
warrant.
Number 100
REPRESENTATIVE BUNDE asked if a lot of these anonymous situations
arose out of revenge motives.
Number 115
MR. RUDDELL thought that there was revenge in a very few cases
involving divorce.
Number 200
DEAN GUANELI, Assistant Attorney General, Department of Law, echoed
a number of comments of people who spoke in support of crime
stoppers organizations. In many instances they do perform a public
service. There a lot of people who do not want to get involved in
the criminal justice system and are afraid of retaliation if they
were to report a crime. Unfortunately, we live in a society where
retaliation for honest citizens for reporting crimes is all too
common. Because of that, people who use crime stoppers
organizations expect anonymity, and sometimes refuse to give their
names. It seemed that to the extent that the courts are imposing
rules upon this kind of information, it is probably based on the
Fourth Amendment to the United States Constitution, or the
comparable provision of the Alaska Constitution. To the extent
that it is constitutionally based, there is a question whether the
legislature can change the rules of presumption the courts apply in
assessing this type of evidence. This ought to be looked at more
carefully. He wondered whether they could do, constitutionally,
what is proposed in this provision about search warrants. Having
said that, however, once the court hears the information that is
provided anonymously, and tests that information with whatever
standard the court believes is constitutionally required, and then
decides that information passes that test, and that the court can
legitimately issue a search warrant based on that information; at
that point, the police have done all they can do. They have
presented the information they have to the judge, the judge has
made a ruling, has issued a warrant, which is what our Constitution
requires, and the police go out and find some evidence. At that
point, you start to wonder how relevant it is who that informant
is, what that person's motives were, and you start to wonder
whether a defendant ought to be allowed to have that identity and
information divulged; because the reason for getting a search
warrant is to prevent the police from abusing the Constitution; to
force the police to go through the method our Constitution sets out
for searching people's property. Once they have done all that, you
have to wonder whether the policies that support the crime stoppers
organizations outweigh a defendant's opportunity to go in and find
out who this person was. It is not really an issue of your right
to confront your accusers. Your accuser is the police officer who
found marijuana growing in your basement, not the person who
detected the odor of marijuana while walking past your house.
Number 340
REPRESENTATIVE TOOHEY asked if anonymity would be up to the
individual providing the information, or up to the police.
CHAIRMAN PORTER said the common practice is to grant anonymity to
a witness to the extent that they can proceed with the case. If
they come up against a situation where they do not have enough
verifying information or details to justify a search warrant or
arrest; they would come back to you and say they have two steps,
but need three. The only way to get three steps, is if you give
your name. If you say no, the case is dismissed.
Number 380
REPRESENTATIVE FINKELSTEIN asked what the current procedure is.
When an anonymous tip comes in, do they try to verify what they
consider a sufficient amount of details?
Number 390
MR. GUANELI said if there is an anonymous tip, the police have to
try to collaborate some of that information. The level of
collaboration they need to come up with may vary from judge to
judge, but he was not certain how some of the details of this
language fit into the current test.
Number 430
CHAIRMAN PORTER said he has been involved with crime stoppers for
a number of years, and they serve a very good purpose. They have
demonstrated their success all over the country. The bill in front
of us asks for an additional consideration towards the crime
stoppers program, that does present some constitutional problems.
He wanted Anne Carpeneti and Dean Guaneli to get together with the
sponsor to see if they could shape some of this language to get
away from the constitutional problem that exists in terms of
lowering the standard for informant evidence. That would not make
it, and it would not be in anybody's best interest to pass a bill
out that would not meet the constitutional challenge.
REPRESENTATIVE GARY DAVIS appreciated the concerns and did not
intend to usurp any constitutional rights. He appreciated the
recommendation, and intended to pursue that.
HJUD - 02/22/95
SSHB 52 - DNA EVIDENCE IN CIVIL AND CRIMINAL TRIALS
Number 470
REPRESENTATIVE GREEN, sponsor of the bill, introduced it, saying it
would allow the introduction of DNA as one of the pieces of
information used in a trial. By no means would it be the make or
break piece of evidence, but it would be allowed in addition to
other evidence, to help establish the guilt or innocence of an
individual.
Number 489
LISA MOCK, Legislative Aide to Representative Joe Green read the
sponsor statement:
"In recent years, the Alaska Legislature has invested significant
amounts of money to create one of the best state forensic crime
labs in the country. A substantial portion of those dollars has
gone into state-of-the-art deoxyribonucleic acid (DNA) analysis
equipment and experts. Having now made the scientific investment,
it is time for the Legislature to ensure that DNA evidence can
routinely be heard by Alaskan juries.
"DNA analysis involves the comparison of the unique genetic coding
found on chromosomes in samples of body fluids. Since the mid-
1980s, DNA analysis increasingly has been used to match samples of
body fluids found at crime scenes with those of suspects. If the
samples match, the laboratory then determines the probability that
the samples could have come from someone other than the defendant.
"Scientific testimony is often the deciding factor for the judicial
resolution of civil and criminal cases. To test for the
admissability of scientific evidence such as DNA, Alaskan courts
have used the Frye test since 1970. Under the Frye test, in order
for scientific evidence such as DNA to be admitted in Alaskan
cases, the court must determine whether there is a general
consensus in the relevant scientific community that the scientific
testimony is reliable. This is sometimes called the "general
acceptance" test.
"The problem with the Frye test is that is uses a social standard
-- general consensus -- rather than a scientific standard. The
Frye test makes it nearly impossible, and outrageously expensive,
for an Alaskan judge to determine in each individual case what
constitutes a general, national scientific consensus.
"Furthermore, the Frye test results in very high court costs. In
order to meet the standards of Frye, there are frequently
repetitive hearings involving similar expert testimony. For
example, in September 1994, a DNA hearing for a murder case in
Anchorage cost the state between $10,000 and $20,000 to provide
four DNA experts from laboratories in North Carolina, California,
and Oregon.
"If enacted, HB 52 would enable the court to first determine if the
evidence is relevant, then weigh the evidentiary value against the
prejudicial effect the evidence may have on the defendant's case.
Passage of HB 52 would allow the court to make a preliminary
assessment as to whether the underlying reasoning or methodology of
the DNA testing is scientifically valid and if it can be applied to
the cases at issue. The inquiry is flexible, and more importantly,
focuses on scientific validity, not general consensus. If the
principles, methodology, and reasoning are scientifically valid,
then it follows that the inferences, assertions, and conclusions
derived therefrom are scientifically valid as well.
"HB 52 would provide a flexible and more lenient test that favors
the admission of any scientifically valid expert testimony. The
ongoing debate over DNA testing underscores the need to deal more
effectively with the difficulties that arise whenever complex
scientific technology is introduced as evidence in a court of law.
I strongly urge the Alaska Legislature to pass HB 52."
Number 560
REPRESENTATIVE TOOHEY made a motion to adopt Version M as the work
draft. Seeing no objection, it was so ordered.
Number 580
MR. GUANELI discussed the legal aspects. He explained the changes
that have been made through the different versions of the committee
substitute. Essentially what this addresses is the standard for
admissability. Definitions of what DNA profile means, as was just
explained, turns on this scientific validity of the evidence,
rather than on some other more difficult standard, such as general
acceptance in the relevant scientific community. Part of the
question about DNA evidence is that it is a rapidly changing field.
There are labs all across the country doing work in the DNA field
and there are universities all across the country that are studying
the statistics on which the probabilities are based. The research
is rapidly expanding through use of computers, but the relevant
scientific community that may use this type of evidence has a hard
time keeping up with the development of this testing, and therefore
the cutting edge of the field, which is certainly scientifically
valid, and some of the world's foremost experts will testify to
that effect; it really has not trickled down yet to the general
scientific community. That is the problem in using this test that
the courts now use which dates from the 1920s.
MR. GUANELI said the United States Supreme Court has adopted a test
based on scientific validity, and certainly for DNA evidence, which
is a modern, and rapidly changing field, it is appropriate to use
a more modern type of test for scientific evidence. That is what
this does. He clarified the costs of the experts in that trial
were not between $10,000 and $20,000; they were over $20,000. Mr.
Guaneli approved those bills for payment. They had the same kind
of costs in a murder/rape case in Fairbanks, where there were
extensive hearings in front of the judge, and the judge wrote a
long opinion, and the case is up on appeal now. There are
limitations the Alaska courts have placed on the admissibility of
this evidence under that old test. The courts will not, under the
old test, allow the experts to state that based on the best
scientific testing, the probabilities are one in a million that it
could be somebody else. They will be able to testify that, based
on other types of testing which are more accepted in the general
scientific community, that the odds are four out of 100, or
something like that. In some cases, that is good enough, and in
other cases, it may not be.
MR. GUANELI stated one of the primary uses of DNA evidence is to
exclude individuals. It is very good at excluding other suspects.
That not only protects innocent people, but it also helps the
prosecution because a lot of times, particularly in murder cases,
there is no witness, so it is a circumstantial case, and one of the
best defenses at trial is to say some other person did it. The
defense will point a finger at a number of people who may have been
in the area at the same time and may have done it. By taking blood
samples from those people, we can exclude them with 100 percent
certainty. That is what happened in the Fairbanks case. A woman
was killed in her home. The natural suspects, based on the
investigation, were any number of men in the neighborhood. All of
them except one gave a blood sample and were excluded. This is
valuable evidence.
MR. GUANELI wanted to clarify that when he had testified a couple
of weeks ago about the DNA data bank, he indicated at the time,
that as good as that bill was, it was really only answering half of
the question. It is one thing to collect samples and to test those
samples and identify suspects, it is another thing to use that
evidence in court. This is the other half of the picture.
Number 670
REPRESENTATIVE FINKELSTEIN used the example of a case where they
are using DNA evidence and the defense is challenging the
credibility. Is this argument going on before the judge or the
jury? Does a jury make decisions on scientific sufficiency of DNA
testing, or is it up to the judge?
MR. GUANELI said the judge would determine if the evidence is
allowed to get in front of the jury. And then, like any other
evidence, it is for the jury to decide how much weight to give that
evidence. He was not saying that by passing this bill, they will
not have to pay experts to come in and give testimony. We will
have to, because, in order for the jury to understand this
evidence, and to view it as something other than a series of lines
on a chart, we are going to have to bring in some chemists from the
state crime lab who will be able to explain this to the jury. But
the judge makes the initial determination as to whether the
evidence is scientifically valid enough to go in front of a jury.
Once that decision is made it is up to the jury to decide whether
or not to give this information credibility, and that depends on
the way the test was done, the way the evidence was collected, and
that sort of thing.
Number 690
REPRESENTATIVE FINKELSTEIN said that if it does get before a jury,
the defense can still spend their time trying to discredit the
scientific basis for the information, with or without this bill,
correct?
MR. GUANELI agreed.
Number 695
LINDA BRANCHFLOWER, Alaska Peace Officers Association (APOA),
testified via teleconference. She said she is a detective for the
Anchorage Police Department and has worked with sex crimes for four
years. DNA has been used by police agencies since 1986 to clear
people as well as to convict them. For an analogy, fingerprinting
was introduced in the Saint Louis World's Fair in 1901, and it only
took five years to become widely accepted in American courts. The
APOA feels this scientific procedure has been beneficial in courts
all over the world, and you should not bow to the pressure of these
criminal defenses bars, trying to keep a useful piece of evidence
form the court room.
Number 720
ARVID BJORNTON, member of the Board of Directors of (STAR),
testified via teleconference. He is also a member of the Task
Force on Sexual Assault and Domestic Violence in Anchorage. He
wanted to bring to light the importance of DNA evidence in court
cases to victims of violent crimes, especially sexual assault. The
issue is usually one of consent. In one situation a person will
say, "Yes I did it, and she was willing." On the other end of the
spectrum is the person who will say, "I did not do it. I was not
there. I do not know who she is." The admission of DNA evidence
tends to show whether the suspect was at the scene of the crime or
not. It saves a lot of time and money.
Number 750
RANDALL BURNS, Alaska Civil Liberties Union (ACLU), said the group
is not opposed to the use of DNA evidence. They did have concerns
about the validity of its uses. "The admission of the DNA profile
does not require a finding of general acceptance in the relevant
scientific community of DNA profile evidence.", is a very strange
sentence to have in a statute. What we are saying is we do not
really think it has to be generally acceptable on scientific
principles in order to establish potential guilt or innocence in a
case. It is a strange thing to say that we do not care that it is
not generally accepted or that it is scientifically valid. We are
talking about the taking away the freedom of or the incarceration
of an individual, based on DNA evidence. Before we rush into a
debate on the value of science, we need to recognize that the O.J.
Simpson case has shown us that there are lots of disputes, not
necessarily about the process of the DNA test itself, but about the
way in which the samples are collected, the validity of the labs
and the testing they are doing, and the kinds of calculations made
in determining validity of evidence. This bill says nothing about
ensuring us the DNA samples used were collected properly,
maintained properly at the lab, and that is a concern.
MR. BURNS did not generally oppose DNA testing, but wanted to see
that there were assurances about procedures used.
Number 827
REPRESENTATIVE FINKELSTEIN saw Mr. Burns' point, and also thought
there could be a clearer way to say it.
TAPE 95-16, SIDE A
Number 000
CHAIRMAN PORTER said the standard they would not like to meet, is
the situation that gets you to go get five experts who are so
behind the power curve on this technology, that they will say, "No,
this is not generally excepted. I have never heard of it." Of
course, they have not opened a book in ten years either, but you
can always do that, and it will take years to get through a trial
if that is the way you have to operate. If you have an expert that
says, "This is invalid because of this," and "That is relevant and
can be admitted," the judge then gets to say whether it is
relevant.
MR. GUANELI felt that accurately summarizes the intent of what we
are trying to do. We want you to use the standard that has been
adopted by the United States Supreme Court, which is the scientific
validity standard. The second sentence says that what we mean by
that is we do not want you to go back to using the old test.
Because if a judge wants to interpret the phrase, "scientifically
valid" in a way that is really the old way of doing it, requiring
some consensus, we could end up back where we started because in
Section 3, this can amend a court rule to the extent that would
limit the admissibility; and the reason we are doing that is
because we want to overturn this case. This section is not going
to be in the statutes anywhere. It needs to be set in statute
saying we do not want you going back to your old test, because it
really does not fit this kind of evidence anymore. That is the
reason why the two sentences are in there.
REPRESENTATIVE GREEN said we are going to allow the Dalbert test,
and not have to use the Frye test. That is really all it is
saying.
REPRESENTATIVE BUNDE made a motion to move the bill out of
committee, with zero fiscal notes and individual recommendations.
Seeing no objection, it was so ordered.
HJUD - 02/22/95
HB 108 - USE PFD'S TO RECOVER WELFARE OVERPAYMENTS
Number 070
REPRESENTATIVE TOOHEY, sponsor of the bill, read the following
sponsor statement:
"House Bill 108 would give the Department of Health and Social
Services the administrative authority to garnish permanent fund
dividends of individuals who have received public assistance
overpayments and are delinquent in repaying the debt.
"Frequently persons receiving overpayments agree to repay the debt,
but fail to do so. If a person is still on public assistance, the
person's benefit can be reduced as a means of collection, but if a
person is off assistance, collection becomes difficult. There is
currently over half a million dollars in outstanding debt due the
Department.
"Collection through the court system can be time-consuming and
costly, House Bill 108 would allow the Department to pursue in the
same manner that delinquent loans are pursued."
REPRESENTATIVE TOOHEY said this legislation is supported by the
Department of Health and Social Services. There are two positive
revenue generating fiscal notes from the Department of Health and
Social Services, and a zero fiscal note from the Department of
Revenue. She introduced Elmer Lindstrom who came to testify.
ELMER LINDSTROM, Special Assistant, Office of the Commissioner,
Department of Health and Social Services, had nothing to add,
except that they do support the bill.
Number 135
REPRESENTATIVE FINKELSTEIN assumed the department currently has the
power to garnish permanent fund dividends (PFDs) for someone who is
a current recipient.
MR. LINDSTROM answered if the person is a current recipient of
public assistance, it would be a matter of reducing their future
payments. This is only an issue for people who have left the
caseload, and have been overpaid.
Number 150
REPRESENTATIVE FINKELSTEIN asked if the first sentence, AS 09.38
applies to PFDs taken under this new section we were making.
ANNE CARPENETI, House Judiciary Committee Aide, said there are
exceptions for bankruptcy.
REPRESENTATIVE FINKELSTEIN asked if you would still have this debt
if you went bankrupt.
MS. CARPENETI said that was right.
Number 170
REPRESENTATIVE DAVIS made a motion to move the bill out of
committee with accompanying fiscal notes and individual
recommendations. Hearing no objection, it was so ordered.
ADJOURNMENT
The House Judiciary Committee adjourned at 3:20 p.m.
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