01/26/2004 02:05 PM House JUD
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 26, 2004
2:05 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 348
"An Act relating to the rights of certain victims of crime to
receive information about the office of victims' rights."
- HEARD AND HELD
HOUSE BILL NO. 357
"An Act relating to restitution; and providing for an effective
date."
- HEARD AND HELD
HOUSE BILL NO. 349
"An Act amending Rule 412, Alaska Rules of Evidence."
- HEARD AND HELD
HOUSE BILL NO. 398
"An Act relating to domestic violence fatality review teams."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 397
"An Act relating to defense contacts with and recordings of
statements of victims or witnesses; and amending Rule 16, Alaska
Rules of Criminal Procedure."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 348
SHORT TITLE: NOTICE RE OFFICE OF VICTIMS RIGHTS
REPRESENTATIVE(s): STOLTZE, DAHLSTROM, SAMUELS, MCGUIRE
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
01/26/04 (H) JUD AT 2:00 PM CAPITOL 120
BILL: HB 357
SHORT TITLE: RESTITUTION
REPRESENTATIVE(s): SAMUELS, STOLTZE, MCGUIRE, DAHLSTROM
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
01/26/04 (H) JUD AT 2:00 PM CAPITOL 120
BILL: HB 349
SHORT TITLE: ILLEGALLY OBTAINED EVIDENCE
REPRESENTATIVE(s): SAMUELS, MCGUIRE, STOLTZE, DAHLSTROM
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
01/26/04 (H) JUD AT 2:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE BILL STOLTZE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as one of the prime sponsors of
HB 348.
STEPHEN BRANCHFLOWER, Director
Office of Victims' Rights (OVR)
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
348 and responded to questions; provided comments during
discussion of HB 349 and responded to questions.
JUDITH McARTHER (ph)
(Address not provided)
POSITION STATEMENT: Provided comments during discussion of HB
348; during hearing on HB 357 testified regarding the need for
restitution to be ordered.
LINDA WILSON, Deputy Director
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Testified that the PDA has no problem with
HB 348; relayed the PDA's concerns with HB 357 and responded to
a question; relayed the PDA's concerns regarding HB 349, and
responded to questions.
PAGE LINDER (ph)
(Address not provided)
POSITION STATEMENT: Provided comments during discussion of HB
348.
REBECCA ROBERTS (ph)
(Address not provided)
POSITION STATEMENT: Testified in support of HB 348 and urged
its passage; testified in support of HB 357 and urged its
passage.
ANNA FAIRCLOUGH, Executive Director
Standing Together Against Rape (STAR);
Member
Anchorage Assembly
Municipality of Anchorage (MOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
348; testified in support of HB 349 and asked questions of the
committee.
TAMARA de LUCIA, Associate Victims' Rights Advocate
Office of Victims' Rights (OVR)
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: During hearing on HB 357 testified that
allowing restitution judgments to be reduced from the actual
damages suffered is unfair to the victim and does not hold
offenders accountable for their crime.
ACTION NARRATIVE
TAPE 04-3, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 2:05 p.m. Representatives
McGuire, Anderson, Holm, Ogg, and Samuels were present at the
call to order. Representatives Gara and Gruenberg arrived as
the meeting was in progress.
HB 348 - NOTICE RE OFFICE OF VICTIMS RIGHTS
[Contains brief testimony in support of HB 357.]
Number 0128
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 348, "An Act relating to the rights of certain
victims of crime to receive information about the office of
victims' rights." House Bill 348 has four prime sponsors:
Representatives Stoltze, Dahlstrom, Samuels, and McGuire.
Number 0190
REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, one of
the prime sponsors of HB 348, offered that this bill is one of
the simpler parts of a "victims' rights package" being
introduced by members of the House. The bill will require law
enforcement officers and prosecutors, at the time of initial
contact, to notify victims, via a printed brochure or other
written material, that the Office of Victims' Rights (OVR)
exists and is available as a resource. The OVR, he noted, is an
agency that is located within the legislative branch of
government, was modeled statutorily on the Office of the
Ombudsman, and was created to ensure that the constitutionally
guaranteed rights of crime victims are upheld. Article I,
Section 24, of the Alaska State Constitution details the rights
of crime victims; this provision of the Alaska State
Constitution was adopted in 1994. He noted that the OVR
currently prints a brochure detailing its services.
REPRESENTATIVE GRUENBERG opined that HB 348 is a very fine bill.
He raised the concern, however, that initial contact may not
always be the best time to give information to the victim of a
crime; he offered instances of when the victim is unconscious,
in shock, inebriated, or underage as examples. He pondered
whether it might be better to alter the bill so that it leaves
the time of notification up to the discretion of the person
giving it.
REPRESENTATIVE STOLTZE posited that "victim" is broadly enough
defined in statute to allow for instances in which the actual
victim is underage or deceased - in those instances the
notification would be given to family members.
CHAIR McGUIRE suggested clarifying that issue through additional
research.
REPRESENTATIVE GARA noted that HB 348 adds a fifteenth [right]
under AS 12.61.010(a), and remarked that this [right] seems
reasonable to him. He added, however, that he wanted to make
sure that HB 348 is actually needed. He asked whether there is
evidence that law enforcement or prosecutors are currently not
notifying victims of the existence of the OVR.
REPRESENTATIVE STOLTZE said that despite everyone's best
intentions, there are instances where victims are not being
notified until far too late in the process. He remarked that HB
348 is part of a broader education process, adding that
sometimes a statute is the best way to go about ensuring that
certain actions are taken. He mentioned that someone relayed to
him an instance of being told something along the lines of,
"We're not required to tell you about it," with the implication
being that victims are supposed to find out on their own about
the OVR.
Number 0550
CHAIR McGUIRE, one of the prime sponsors of HB 348, noted that
the OVR has relayed that while most law enforcement officers and
prosecutors do notify victims about the existence of the OVR,
there are some cases where notification has not occurred; some
victims do not get in touch with the OVR until too late for the
OVR to assist them. She mentioned that in the case of victims'
rights, it is not always clear how those rights are to be
upheld; thus the goal of HB 348 is to ensure, via statute, that
victims are notified about the existence of the OVR. Things get
very harried when a crime has been committed, she remarked, with
a lot of activity taking place, and that's one of the reasons
that Miranda rights violations take place, for example; HB 348
is intended to clarify that notification of the OVR is one of
the steps that must be taken upon initial contact.
REPRESENTATIVE GARA asked why victims of class B and class C
misdemeanors are not listed among those that are to be notified
of the existence of the OVR.
REPRESENTATIVE SAMUELS, one of the prime sponsors of HB 348,
offered his understanding that the OVR covers felonies.
REPRESENTATIVE STOLTZE added that the OVR has jurisdiction only
over certain types and classes of crimes; for example, the OVR
would not have jurisdiction over [misdemeanor] property crimes.
REPRESENTATIVE SAMUELS suggested that victims of felonies need
to know what their rights are in much the same way that
defendants need to be notified of their rights; the sponsors
have simply chosen the OVR, via HB 348, as the vehicle though
which to tell victims about their constitutional rights. He
referred to the OVR as a victim's ombudsman, opined that the
bill does not impose a big burden on law enforcement officers or
prosecutors, and noted that it does not have much in the way of
penalties for noncompliance. He suggested that if it is later
found that the OVR's jurisdiction needs to be expanded, then
that can be done through a different bill.
REPRESENTATIVE GARA asked whether the OVR is statutorily
precluded from helping victims of crimes other than those
currently listed in HB 348.
Number 0864
STEPHEN BRANCHFLOWER, Director, Office of Victims' Rights (OVR),
Alaska State Legislature, explained that the OVR has been in
existence for approximately 18 months, during which it has
handled several hundred cases. One of the things that the OVR
discovered, he relayed, is that most of its clients learned
about the OVR either at the last minute or just at the very time
when they had to make critical decisions and was oftentimes too
late. The problem, he outlined, is that many rights which
victims have are tied into various stages of the criminal
process and are thus time sensitive. For example, victims have
specific rights during the investigative stage, the arraignment
stage, the bail-hearing stage, the trial stage, and so forth.
Therefore, if victims are not aware by a particular point in
time that they have certain rights specific to a given stage in
the criminal justice process, then those stages go by without an
invocation of the rights associated with them.
MR. BRANCHFLOWER surmised that the number one reason for the
commonly heard refrain of, "Boy, if I'd just known about you ...
six months ago ..." or, "... a year ago ..." seems to be simply
a lack of awareness that the OVR exists as a resource for crime
victims. To remedy this, he explained, the OVR has undertaken a
very aggressive program to educate those in the criminal justice
system: police agencies, victim support organizations, district
attorney offices, judges, and so forth. The OVR has given more
than 40 presentations in the last eight months, but this is only
just scratching the surface; what is needed, he opined, is a law
like HB 348, which would require law enforcement officers and
prosecutors to notify victims that the OVR is available to
assist them.
MR. BRANCHFLOWER, turning to the jurisdictional issue, explained
that by statute, the OVR has jurisdiction over all felonies and
class A misdemeanors involving domestic violence or crimes
against a person under AS 11.41. Thus the OVR does not have
jurisdiction to provide services to victims of class B, or
lower, misdemeanors. House Bill 348 would place an affirmative
obligation on the part of prosecutors and law enforcement
officers to notify crime victims - those in the appropriate
categories - upon first contact with them and without request
from them, that the OVR exists. This includes providing victims
with the OVR's address, telephone number, and other contact
information. The requirement imposed by HB 348 would be
satisfied if officers and prosecutors give victims a brochure,
which would be provided to law enforcement officers and
prosecutors by the OVR.
Number 1113
MR. BRANCHFLOWER relayed that upon taking a poll of police
officers, they encouraged him to make the requirement as simple
and clear as possible; thus HB 348 is simply a "notice"
requirement rather than an "explanation" requirement. One of
the reasons for this, he added, is, as Representative Gruenberg
pointed out, many times victims are intoxicated, in shock, don't
speak English, or for some other reason not of a mind to start
learning what their rights are. The benefit of being given a
brochure is that victims can take it home, read it, perhaps even
read it over with family, and then decide whether to contact the
OVR. He noted that the definition of victim [AS 12.55.185(17)]
is extremely broad and includes immediate family such as parents
and siblings. Therefore, if law enforcement or prosecutors have
any contact with those folks, a brochure could be given to them
[as well].
MR. BRANCHFLOWER relayed that the OVR's brochure has been
distributed pretty widely - about 16,000 copies have been
circulated around the state - and that it is an informational
brochure which provides contact information. In conclusion, he
said that "this" is one way of getting word out to victims,
especially in the Bush, who would benefit from being notified,
early on, of what their rights are. He suggested that there
might be others available to speak about the hardships resulting
from not knowing about the existence of the OVR.
REPRESENTATIVE GARA raised the issue of whether information
about the Violent Crimes Compensation Board (VCCB) ought to be
incorporated into the OVR's brochure.
MR. BRANCHFLOWER indicated that VCCB information could be added
to the OVR's brochure; he noted that law enforcement agencies
are currently required to notify victims about the availability
of the VCCB.
REPRESENTATIVE GARA expressed a desire to see a paragraph
regarding the VCCB added to the OVR's brochure, which could then
be handed out to all victims of violent crimes. "Should we or
should we not consider doing that?" he asked.
MR. BRANCHFLOWER mentioned that he is not conversant with the
VCCB's jurisdiction or whether that organization has
jurisdictional restraints similar to the OVR in terms of the
class of crime for which someone would be entitled to
compensation.
REPRESENTATIVE SAMUELS raised the concern that altering HB 348
to require the restructuring and reprinting of the OVR's
brochure to include VCCB information might create a fiscal note.
He suggested that perhaps a written request from the committee
that the OVR's brochure be altered when it is next scheduled for
printing would be sufficient. "Rather than put it in the
statute, as long as we get to the same place, that seems cleaner
to me than having [the OVR] print up a whole new batch and
throwing the [current] ones ... in the trash.
Number 1295
REPRESENTATIVE GARA said he is worried that a future OVR
director might not remember to restructure the brochure if such
were not specifically required via statute.
CHAIR McGUIRE suggested that adding intent language to the bill
would be sufficient to ensure that new OVR brochures include
information regarding the VCCB.
REPRESENTATIVE GARA agreed, indicating that he did not want the
OVR to incur additional costs.
MR. BRANCHFLOWER relayed that he is intending to reprint the
OVR's brochures in the spring, and that he believes he can find
room on it for information regarding the VCCB.
REPRESENTATIVE GARA mentioned that he would probably be offering
a conceptual amendment to add [intent language]. On the issue
of the OVR's jurisdictional restraint, Representative Gara asked
Mr. Branchflower whether he sees any benefit to expanding the
OVR's jurisdiction to include class B misdemeanors.
MR. BRANCHFLOWER said no, adding that cases involving class B
misdemeanors are generally resolved too quickly for assistance
from the OVR to be necessary.
Number 1516
JUDITH McARTHER (ph) stated that the OVR's brochure needs to be
handed out as soon as possible, and relayed that she did not
find out about the OVR until approximately 18 months after the
incident with which she was involved took place.
Number 1563
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),
Department of Administration (DOA), relayed simply that the PDA
has no problem with HB 348.
Number 1583
PAGE LINDER (ph) relayed that she was involved in an automobile
accident in June of 2003; she was hit head on by a drunk driver
without insurance. The driver left the scene of the crime, so
it was also considered a hit and run incident. At the time of
the accident, she was put in contact with a police officer, was
taken to the hospital, and was given paperwork to fill out
regarding proof of insurance and the police officer's
information. She said that she'd tried to keep up with process,
but it wasn't until she was given a subpoena for court and
showed up there that she discovered that the drunk driver was
only being charged with driving without insurance; he was not
charged with reckless driving, or with driving while
intoxicated, or with leaving the scene of the accident, or with
hitting another vehicle.
MS. LINDER mentioned that the drunk driver, after hitting her
vehicle head on, had also attempted to run her over when she got
out of her car; in the process of attempting to run her over, he
struck her car again, leaving behind his bumper and license
plate, which was later used to identify him as the person to
take into custody. She explained that she'd only found out
about the OVR in late August through a friend; when she
contacted the OVR, she relayed that she'd wished she'd known
about the OVR and its services at the time of the accident,
because, by the time she did become aware of the OVR, she'd
almost lost her window of opportunity to receive its help. With
the OVR's help, the drunk driver was additionally charged with
several felonies as well as with misdemeanor reckless driving
and driving without insurance. She concluded by saying she
feels that HB 348 would be a very beneficial bill.
Number 1706
REBECCA ROBERTS (ph) offered her support of HB 348. She relayed
that in June of 2003, her son was the victim of a violent crime
- first degree felony assault. She added:
Had we known about the [OVR] at the time the incident
occurred, we might have been able to be afforded true
justice, meaningful assistance, and compassionate
treatment before the law. Victims are unlikely to
attempt to assert rights they do not know they have.
Victims' rights can be ensured only if resources are
sufficient, legally mandated, and enforced. I urge
you to pass this legislation. I did want to make a
comment on the [VCCB]. I fully support their efforts.
I believe their brochure was offered to me on at least
five occasions, three of which physicians called me
personally to let me know that our son was a candidate
for [the VCCB's] services and assistance. But at no
time was I ever informed about the [OVR].
MS. ROBERTS said that she was also calling in to offer her
support of HB 357.
CHAIR McGUIRE, upon determining that no one else wished to
testify, closed public testimony on HB 348.
Number 1791
REPRESENTATIVE GARA made a motion to adopt Amendment 1, a
handwritten amendment which read [original punctuation
provided]:
Insert at p. 3 line 17 after "purpose." "To the extent
feasible, new versions of this pamphlet printed after
the effective date of this act shall also include
information about compensation from the Violent Crimes
Compensation Board."
Number 1796
REPRESENTATIVE ANDERSON objected and [asked] whether the bill's
sponsors concur with Amendment 1; he added that he did not think
it was necessary.
REPRESENTATIVE SAMUELS said he understood the intent of
Amendment 1 and agreed with it, but indicated a preference for
addressing it after it has been reviewed by Legislative Legal
and Research Services to ensure that the wording will not cause
difficulties.
REPRESENTATIVE STOLTZ said he concurred with Representative
Samuels's comments.
Number 1853
REPRESENTATIVE GARA withdrew Amendment 1.
REPRESENTATIVE OGG pointed out that generally, when rights are
created, remedies follow along; HB 348, however, appears to
create a right without providing a corresponding remedy for
noncompliance.
REPRESENTATIVE STOLTZE suggested that there are remedies
available through existing statutes.
MR. BRANCHFLOWER referred to AS 12.61.010(b), which says:
(b) Law enforcement agencies, prosecutors,
corrections agencies, social services agencies, and
the courts shall make every reasonable effort to
ensure that victims of crimes have the rights set out
in (a) of this section. However, a failure to ensure
these rights does not give rise to a separate cause of
action against law enforcement agencies, other
agencies of the state, or a political subdivision of
the state.
MR. BRANCHFLOWER characterized the above language as a hold
harmless provision, with the OVR primarily providing education
to law enforcement agencies. However, in extreme cases, the OVR
can undertake other remedies available under its authorizing
statutes; these remedies essentially amount to providing reports
to the public. He added that such has been done in the past in
exceptional cases.
REPRESENTATIVE OGG said he just wanted it to be clear that [HB
348] creates a right that has no corresponding remedy if that
right is violated.
REPRESENTATIVE GRUENBERG turned attention to page 3, lines 11-
12. He asked whether class A misdemeanors involving theft would
fall under the OVR's jurisdiction.
MR. BRANCHFLOWER said no, reiterating that the only class A
misdemeanors that fall under the OVR's jurisdiction involve
domestic violence or crimes against a person under AS 11.41.
CHAIR McGUIRE, upon learning that someone else wished to testify
on HB 348, reopened public testimony.
Number 2051
ANNA FAIRCLOUGH, Executive Director, Standing Together Against
Rape (STAR); Member, Anchorage Assembly, Municipality of
Anchorage (MOA), remarked that [as the Executive Director of
STAR], she'd attended a meeting with Victims For Justice, Inc.
(VFJ), the Alaska Women's Resource Center (AWRC), and Abused
Women's Aid in Crisis (AWAIC) - the domestic violence shelter in
Anchorage - during which the concern was raised that HB 348
might engender a fiscal note should law enforcement officers in
Anchorage notify every crime victim of the OVR. She elaborated:
"Our concern is that somehow the [OVR] would become a
clearinghouse or the referral base for victim services in
Anchorage."
MS. FAIRCLOUGH, as an Anchorage Assembly member, relayed that
the assembly had had a less than desirable experience with the
OVR in relation to the Godfrey case. She expressed a desire to
discuss in detail with committee members, at another time, how
the OVR presented information to the public, the service that
this provided, what Anchorage was already involved in doing, and
how [the OVR's involvement] did not expedite the process. She
acknowledged that the OVR's intent was noble, but said that her
concern and dissatisfaction stemmed from the fact that Anchorage
had already been doing all the things that the OVR publicly
suggested. "When it became a public ping-pong paddle with who
... had jurisdiction, it was a very uncomfortable feeling as an
Anchorage Assembly member - to sit on that."
MS. FAIRCLOUGH [on behalf of STAR] pondered whether, should the
OVR become a referral office, more people will be hired in order
to deal with possible workload increases.
CHAIR McGUIRE read brief portions of the OVR's brochure.
REPRESENTATIVE SAMUELS surmised that social service
organizations would only be helped by ensuring that information
about the OVR gets distributed. "The [OVR] is basically a law
firm ...; they're just the ombudsman," he remarked, adding that
the OVR will be able to let those that call their office know
about other available resources.
Number 2219
MS. FAIRCLOUGH argued, however, that from the point of view of
sexual assault victims, another layer of bureaucracy is not a
good thing - it will not make them come forward; instead, it
will stop them from seeking help.
CHAIR McGUIRE pointed out, however, that HB 348 merely requires
that information about the OVR gets distributed to crime
victims; it doesn't mandate that victims go through the OVR in
order to receive any other organization's services. "In point
of fact, this is in addition, perhaps, to any other resources
that are available to a woman in that [situation]," she added.
She said she sees no harm in requiring distribution of the OVR
brochure.
MS. FAIRCLOUGH remarked that at the aforementioned meeting, none
of the groups present took a position on HB 348. She offered
her belief that the Anchorage Police Department (APD) does not
want to become a referral service and is, in fact, trying to
consolidate all of the pieces of literature it is now
distributing regarding the social service organizations that are
available in Anchorage.
CHAIR McGUIRE explained, however, that an important distinction
is that the OVR was statutorily created for the purpose of
enforcing victims' constitutional legal rights, whereas the
opportunity to access STAR and similar organizations is not a
legal right - it is simply an opportunity.
REPRESENTATIVE GARA asked whether the concern about excessive
literature is something the legislature ought to consider.
CHAIR McGUIRE reiterated the distinction between the OVR and
social services organizations. The OVR enforces victims'
constitutional rights, rights much like those afforded to
defendants as a result of case law. With regard to whether law
enforcement should be required to distribute information about
the OVR, she said, "I think it is critical because I think
[that] when a crime occurs, there ought to be as much attention
paid to the victims as there [is] to the defendants; it's
critical for me to know that ... an officer ... responding to an
incident is paying ... attention to both sides of the equation."
The more attention that can be given to victims' rights, the
better, she indicated, adding that it is also important to
continue other forms of outreach to victims.
TAPE 04-3, SIDE B
Number 2393
MS. FAIRCLOUGH, in response to Representative Gara, said she
believes the police in Anchorage are doing all they can to
reduce excessive literature. Furthermore, the police aren't
mandated to carry those other vehicles of information. Ms.
Fairclough relayed that she wasn't opposed to the distribution
of the material; however, if there is a way to consolidate it,
then there would be one piece rather than multiple pieces. She
noted that carrying a particular amount of any kind of brochure
will be an issue, she said. Ms. Fairclough clarified that "we"
do want victims to be supported whenever possible, although she
didn't want [the OVR] to become a referral service for victims.
The police were trying to avoid the aforementioned by creating
one pamphlet that would detail all the services available to
victims. Although there have been assurances that the OVR won't
become a referral service, she expressed concern that victims
with the OVR's brochure will start calling its number.
CHAIR McGUIRE said she would continue to make sure that the OVR
wouldn't become a bureaucratic barrier to obtaining the other
services that are available. Furthermore, there is no intention
for the OVR to become a clearinghouse.
MS. FAIRCLOUGH noted that there are hundreds of thousands of
other victims that are unrepresented. She relayed her belief
that police officers will continue to hand out the names of
organizations such as AWAIC, AWRC, and STAR. She noted that she
is the new legislative chair for the Alaska Network on Domestic
Violence & Sexual Assault (ANDVSA), and expressed her
appreciation for various pieces of legislation dealing with [the
issues with which she is involved].
REPRESENTATIVE GARA noted that his staff would be working on an
amendment regarding information about the Violent Crimes
Compensation Board.
CHAIR McGUIRE mentioned that Anchorage Assemblymen Tremaine and
Traini were in attendance. Upon determining that there was no
further committee discussion, Chair McGuire set HB 348 aside.
HB 357 - RESTITUTION
Number 2177
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 357, "An Act relating to restitution; and
providing for an effective date." House Bill 357 has four prime
sponsors: Representatives Stoltze, Dahlstrom, Samuels, and
McGuire.
Number 2165
REPRESENTATIVE SAMUELS moved to adopt the proposed CS for HB
357, 23-LS1384\D, Luckhaupt, 1/20/04, as the work draft.
REPRESENTATIVE SAMUELS, one of the prime sponsors of HB 357,
stated that the changes embodied in Version D can be found on
page 2, line 26, where a new Section 5 was added. This new
Section 5 clarifies that the court retains jurisdiction into
adulthood.
Number 2141
CHAIR McGUIRE remarked that there was no objection to the
motion. Therefore, Version D was before the committee.
REPRESENTATIVE SAMUELS pointed out that the committee packet
should contain a sponsor statement and a letter of support from
the Anchorage School District. He highlighted the language
change from "may" to "shall" on page 1, line 4. The result of
this change will be that if an individual causes someone else
financial hardship, then that individual will pay at least part
of the price. With regard to new Section 5, he opined that a
[juvenile] shouldn't be let off the hook [just because he/she
turns 18].
REPRESENTATIVE GRUENBERG provided the committee with a copy of
the current AS 12.55.045. He relayed his understanding that
even with respect to a large amount of restitution, [the repeal
of AS 12.55.045(f)] is taking away the court's flexibility to
consider the defendant's ability to pay restitution. This could
lead to a very unfair result. He posed an example in which a
young person, with dependants to support, does damage to a
school building. If the court can't even consider [the
defendant's ability to pay], it may lead to innocent children
being left with no support. Therefore, he opined, the court, in
some cases, should be able to consider such things. He said he
hesitates to completely repeal AS 12.55.045(f), which, he
recalled, requires the defendant to show clear and convincing
evidence of his/her inability to pay. He announced that he
supports the legislation itself, but reiterated his belief that
the court should have some flexibility to consider the
[defendant's ability to pay].
REPRESENTATIVE SAMUELS noted that AS 12.55.045(f) includes the
following language: "the defendant's sentence includes a period
of unsuspended incarceration exceeding 90 days". He remarked
that of course the individual has no ability to pay during the
90 days when he/she is incarcerated and not working. However,
the individual shouldn't be let off the hook when the individual
is no longer incarcerated. He remarked that the individual
should be reminded of what he/she did even if it's through
payment of only $10 per week. He offered his belief that
providing latitude to the courts means that there could be
unfair situations from judge to judge.
REPRESENTATIVE GRUENBERG suggested that perhaps this is
something that needs to be discussed between now and the bill's
next hearing.
Number 1762
TAMARA de LUCIA, Associate Victims' Rights Advocate, Office of
Victims' Rights (OVR), Alaska State Legislature, noted that AS
34.50.020 currently caps damages for vandalism against public
buildings, including school vandalism, committed by minors at
$10,000. House Bill 357 will bring AS 12.55.045 into line with
the [current] stated legislative purpose: "a public policy
favors requiring criminals to compensate for damages and
injuries to their victims". She highlighted that victims of a
terrible crime can never be made whole. Although much of the
suffering that victims go through can't be compensated, a
restitution award is a way in which a defendant can attempt to
right the wrong.
MS. de LUCIA characterized the provision repealing the court's
ability to take into account an offender's ability to pay
restitution as important. She explained that often the court
reduces the restitution award when an offender has been
sentenced to jail time because the defendant's earnings while
incarcerated will be nominal or nonexistent. However, a
reduction in the restitution award doesn't account for a
potential windfall that that offender may receive during his/her
lifetime nor does it account for the possibility that the
offender may obtain a good job and then be able to compensate
the victim. Offenders are often young and have a lifetime of
earnings ahead of them. She opined that allowing restitution
judgments to be reduced from the actual damages suffered is
unfair to the victim and does not hold offenders accountable for
their crime.
Number 1680
CHAIR McGUIRE, one of the prime sponsors of HB 357, turned to AS
34.45.020 and noted that it only refers to minors.
REPRESENTATIVE GARA said he supported obtaining every last penny
of restitution possible from someone who commits a crime against
someone else, and therefore he agrees with the concept and the
approach. However, he expressed concern with regard to deleting
any reference to the criminal's ability to pay. He posed an
example in which a criminal disfigures someone and this results
in $500,000 worth of medical bills. The judge in such a
situation has the ability to place the offender in jail and
retain jurisdiction over the offender for 10 years from the date
of the crime. Under HB 357, the judge wouldn't be able to
consider the defendant's ability to pay and, thus, over the
course of the next 10 years this defendant would have to come up
with $500,000 while the court has jurisdiction. Therefore, he
expressed concern that HB 357 may result in the court saying
that the defendant must pay more money than he/she will ever
have. He questioned whether the aforementioned may cross a
constitutional line and thus he asked if any constitutional
research had been done on this matter.
MS. de LUCIA responded that Article 1, Section 24, gives victims
a constitutional right to restitution from their offenders. She
said that she doesn't have any information that indicates this
provision would go against the constitutional rights of
defendants. However, she noted that she isn't an authority on
the latter. In further response to Representative Gara, Ms. de
Lucia specified that she had done no research [regarding whether
HB 357 may cross a constitutional line].
Number 1449
JUDITH McARTHUR (ph) informed the committee of her daughter's
car accident, which resulted in $420,000 worth of medical bills
to date for her and her friend. She pointed out that there was
a separate hearing for restitution during which the defendant
denied having any property, although some research revealed that
the defendant did own property. The defendant claimed that
because the state had taken his driver's license, he [was
earning] insufficient money to pay restitution. Ms. McArthur
noted that her daughter had to replace her car, which wasn't
considered in restitution. Furthermore, because of neurological
deficits [due to this incident] it's taking six years [for her
daughter] to complete college. She echoed earlier sentiments
that restitution can never make her daughter and her friend
whole. "Restitution does need to be ordered; it does need to be
made," she said.
Number 1312
LINDA WILSON, Deputy Director, Alaska Public Defender Agency,
Department of Administration (DOA), began by saying that
although the [PDA] certainly supports restitution and
restorative justice, it does have concerns with HB 357. The
language change from "may" to "shall" is problematic because
nowhere in the legislation is there language specifying that
there be a request from the victim for reimbursement of loss.
She asked if [this language change] would require the court to
go through a process to determine the amount of any loss. She
noted that many times victims don't request restitution.
MS. WILSON turned to the fiscal note and the provision repealing
AS 12.55.045(e) and (f). As mentioned earlier, she remarked, if
a large amount of restitution is owed, there is the presumption
that the defendant has the ability to pay, and so the defendant
would have to overcome that presumption. Without taking into
consideration the defendant's ability to pay, she said she felt
that the legislation binds the ability of the courts and the
judges to be fair in determining restitution.
MS. WILSON posed a situation in which a defendant is unable to
pay, yet that is part of the conditions for release. Currently,
in such a situation, if the defendant petitions for revocation
of the defendant's probation, it must be proven that it was a
willful violation. Therefore, there is a process by which to
determine whether the defendant can pay or not and whether the
nonpayment is willful.
REPRESENTATIVE GARA said he is trying to determine whether there
might be a constitutional problem with [the bill], for example,
in a situation in which an individual pays as much as he/she can
in restitution but [still] doesn't have enough to pay it all.
MS. WILSON answered that it would be cruel and unusual
punishment to incarcerate an individual for his/her inability to
pay [restitution].
Number 0941
REBECCA ROBERTS (ph) informed the committee that she is the
parent of a child who was permanently disfigured as the result
of a violent crime. She indicated she supported HB 357 because
it would require judges to order restitution in every case in
which victims have suffered financial loss. In the case of a
juvenile, she opined that a juvenile's restitution order should
survive past the legal age of 19. Ms. Roberts relayed her
belief that young offenders should be held accountable. By not
ordering restitution the juvenile justice system is leading
youth into thinking that there are no serious consequences to
crime. Many studies confirm that repeat offenders commit much,
if not most, of the predator violent crime. Furthermore, many
juvenile offenders are becoming violent at earlier ages. Ms.
Roberts concluded by urging the committee to pass HB 357.
CHAIR McGUIRE, upon determining that no one else wished to
testify, closed public testimony.
REPRESENTATIVE SAMUELS turned to the constitutional issues and
highlighted that victims have a constitutional right to
restitution "right off the bat." Therefore, he opined, forcing
the court to make the judgment is not going to be a problem. He
reiterated his earlier sentiments regarding the need for those
[juveniles] who commit crimes to pay into their adulthood [when
able to do so]. He said he would obtain an opinion from
Legislative Legal and Research Services regarding the
constitutionality of such. He also offered to review
[subsection] (f) of the current statute in order to see that
everyone's concerns are addressed.
CHAIR McGUIRE suggested that Legislative Legal and Research
Services should also be asked to review mandatory minimum
sentences because she believes that issue will engender a
similar line of questions. By not removing subsection (i), by
taking away the courts' discretion, and by requiring that the
defendant pay restitution in some way, [it will result] in
"beefing up" a part of the sentence. It will be interesting,
she remarked, to see what Legislative Legal and Research
Services returns on the aforementioned issue as well as the one
regarding how the [defendant's] constitutional right bumps up
against the victim's constitutional right to restitution.
REPRESENTATIVE GARA clarified that he wasn't saying that [the
legislation] is unconstitutional; rather, that he didn't want to
pass legislation that would jeopardize an existing statute
merely because there was a desire to have a better one.
Number 0591
CHAIR McGUIRE announced that CSHB 357 [Version D] would be set
aside.
HB 349 - ILLEGALLY OBTAINED EVIDENCE
Number 0511
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 349, "An Act amending Rule 412, Alaska Rules of
Evidence." House Bill 349 has four prime sponsors:
Representatives Stoltze, Dahlstrom, Samuels, and McGuire.
The committee took an at-ease from 3:33 p.m. to 3:44 p.m.
REPRESENTATIVE SAMUELS, one of the prime sponsors of HB 349,
specified that HB 349 will amend a court rule. He explained
that presently, when there is a violation of Miranda, a
statement or evidence can be excluded from court and can only
come to light in a subsequent perjury trial. In Anchorage there
was a case in which a man provide statements detailing how he
murdered his wife. However, on the witness stand the man told a
completely different story. This man was subsequently given a
sentence of up to 99 years. Had the state not been able to
convict him the way it did, and had it instead had to go after
him for perjury, the man would've faced a sentence of six years.
Representative Samuels explained that HB 349 attempts to change
the rule such that if a defendant chooses to [confess] during
the investigative process and then later gives a completely
different story while on the stand, the original statement can
be brought forth so that the jury can decide which of the
defendant's statements was the truth. The bill contains a
caveat on page 2, lines 1-2, which specifies, "shows that the
statement was otherwise voluntary and not coerced". The
aforementioned language would retain the judge's ability to
preclude a coerced statement under any circumstances, but will
allow statements to be used if there was a "technical violation"
of Miranda.
CHAIR McGUIRE, one of the prime sponsors of HB 349, informed the
committee that what [HB 349 proposes] is already the law under
the federal rules of evidence. She noted that many other states
have this law as well, highlighted that under such rules, the
jury decides which statement has more credibility.
Number 0118
STEPHEN BRANCHFLOWER, Director, Office of Victims' Rights (OVR),
Alaska State Legislature, turned to the notion of suppression,
which stems from the concept of the exclusionary rule. The
exclusionary rule is based on the premise that police shouldn't
be rewarded for enforcing the law incorrectly. Therefore, if
the police break the law, the jury doesn't get to hear the
evidence. He emphasized that the rule change embodied in HB 349
doesn't change the exclusionary rule or the doctrine of
suppression. However, the legislation does hold defendants who
use Miranda and other rights as a sword [rather than a shield].
TAPE 04-4, SIDE A
Number 0001
MR. BRANCHFLOWER stated that what is being proposed via HB 349
has been the law in federal courts since 1971 as a result of a
U.S. Supreme Court decision in Harris v. New York, 401 U.S. 222
(1971). The following are statements Mr. Branchflower
attributed to Chief Justice Burger regarding that decision:
Every criminal defendant is privileged to testify in
his own defense, or to refuse to do so, but that
privilege cannot be construed to include the right to
commit perjury. ...
The shield provided by Miranda cannot be perverted
into a license to use perjury by way of a defense,
free from the risk of confrontation with prior
inconsistent utterances. ...
MR. BRANCHFLOWER indicated that HB 349's rule change would
prevent just such [perversions] from occurring.
REPRESENTATIVE GARA asked if there were constitutional rules
which require, under any circumstances, that a statement be
taped and kept.
MR. BRANCHFLOWER replied that under Alaska law, there are a
couple of cases - one of them being the Alaska Supreme Court
case, Stephan v. State of Alaska, 711 P.2d 1156 (Alaska 1985) -
which say that during a custodial interrogation which occurs at
a place of detention, the police are required to tape record the
entire statement including the reading of the rights. If that
is not done, he explained, unless the police can demonstrate one
of the exceptions - for example, the malfunction of the tape
recorder, or if the defendant wished to talk but declined to do
so on tape - there is what is called a per se rule of exclusion.
REPRESENTATIVE GARA gave a hypothetical example of a taped
custodial interrogation of a sixteen-year-old defendant and a
badly motivated law enforcement officer who "has it out for" the
defendant. What happens if the officer "accidentally" loses the
tape, shows up at trial, and says the defendant admitted the
crime, he asked. He questioned whether or not HB 349 allows the
officer to get away with saying the tape was lost.
Number 0330
MR. BRANCHFLOWER answered that it does not. He said that the
state would have to sustain a burden of proof in a pretrial
hearing and show that there was good faith on the part of the
officer losing the tape. Assuming that the state would prevail,
the defendant would always still have the ability to argue a
bias on the part of the police officer, he said. What this
amendment seeks to address is the situation where the defendant
would make some claim that was inconsistent with that earlier
statement. Referring to the aforementioned hypothetical case,
he said such cases usually get screened out or are resolved with
a plea or reduction. House Bill 349 is designed to address
egregious situations in which what happened on the tape is
clear, he added.
REPRESENTATIVE GARA asked for clarification about evidence not
being excluded any more.
MR. BRANCHFLOWER replied that there is a requirement under
paragraph (1)(B) that statements be voluntary and not coerced,
so there is still an element that the state has to address.
REPRESENTATIVE GARA argued that [in his hypothetical case], HB
349 says that the officer who loses the tape in bad faith can
come in and testify that the sixteen-year-old defendant said he
did it.
MR. BRANCHFLOWER replied that that would be the case only if,
first, the judge rules in the state's favor in a pretrial issue
regarding the requirement to tape record, and second, only if
the defendant takes the stand and lies. The bill doesn't allow
the state to do anything different than what it is permitted to
do now in terms of its case in chief; excluded statements are
still excluded and suppressed statements are still suppressed,
he said. The only change comes about when the defendant takes
the stand and lies, he added.
CHAIR McGUIRE said she thought Mr. Branchflower's explanation
was very clear. She stated that the bill really applies to
those cases where defendants are going to take the stand and use
this law, in effect, as a sword, in order to be able to say
whatever they want because the fact that they have made prior
inconsistent statements will not be introduced or become part of
the record for the jury to consider.
Number 0615
REPRESENTATIVE GARA said that he understood that the bill only
applies once the defendant wants to testify. He again
questioned the allowance of illegally obtained evidence.
MR. BRANCHFLOWER reiterated that the court would first have to
rule on the admissibility of the earlier statements when the
tape is missing. If the officer lies during rebuttal, it would
become a question of credibility. Without any tape, the state
would have a tough burden to sustain, he said, adding, again,
that these kinds of cases would be infrequent.
REPRESENTATIVE GARA agreed that this type of case would be rare,
but added:
Those are the kinds of things that Congress thought
wouldn't occur under the [Uniting and Strengthening
America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act
of 2001] too and they all voted for it ...; it's these
occurrences that rarely ever happen that the
constitution is there ... to prevent from ever
happening.
MR. BRANCHFLOWER said he agreed, but noted that situations like
the aforementioned Anchorage example happen more often when
defendants learn from their lawyers that their confessions are
nonexistent and so they then testify when they ought not to.
CHAIR McGUIRE stated, "You still have to prove that the
statement was voluntary and uncoerced," and emphasized the
importance of this point.
REPRESENTATIVE GARA agreed. He asked whether HB 349 is altering
a court ruling or the [Alaska State] Constitution.
MR. BRANCHFLOWER answered that Rule 412 of the Alaska Rules of
Evidence was promulgated and amended by the Alaska Supreme Court
through its constitutionally granted authority. Rule 412 is
derived from what used to be called [Criminal] Rule 26(g) of the
Alaska Rules of Criminal Procedures, he said, and explained that
it was amended in 1979 by adding the exception for perjury so
that it would be possible for a person who commits perjury to be
prosecuted in a separate prosecution. That was the Wortham v.
State case. He said HB 349 is not changing the constitution,
but is in line with what is constitutionally permitted. If the
rule was changed by the Supreme Court in 1979 to permit for
collateral prosecution for perjury, he said, then he doesn't see
a problem with now changing the rule by a two-thirds vote.
REPRESENTATIVE GARA asked whether case law has said that Rule
412 is required by the Alaska State Constitution.
Number 1090
MR. BRANCHFLOWER indicated that there was not, adding that the
clearest indication is the Wortham case, which said that it
doesn't offend the Alaska State Constitution to use illegally
seized evidence, though such use is limited to a collateral
prosecution for perjury. In response to a question he cited
Wortham v. State, 641 P2d 223 (Alaska App. 1982).
CHAIR McGUIRE indicated that members would be provided a copy of
that case.
REPRESENTATIVE GARA asked for clarification of the rule before
Wortham. He surmised that illegally obtained evidence couldn't
be used in a subsequent prosecution, but then Wortham made the
exception for perjury. He asked if HB 349 creates a much
broader exception.
MR. BRANCHFLOWER replied that it is broader in the sense that
the jury in the principle case will know that the defendant is
lying, as opposed to having a collateral prosecution. He noted
that if a person was on trial for first degree murder it is a
small hindrance to risk a prosecution for a class C felony or a
class B felony.
REPRESENTATIVE OGG said that in some areas, the Alaska State
Constitution is broader than the U.S. Constitution in its
protection of citizens' rights. He asked how other states'
constitutions compare to the Alaska State Constitution with
regard to the issues the bill addresses.
MR. BRANCHFLOWER replied that he did not know.
REPRESENTATIVE OGG said that he would like to get information on
that point.
REPRESENTATIVE SAMUELS agreed to investigate that point.
CHAIR McGUIRE referred to a handout in members' packets
detailing the commentary regarding Rule 412, and noted that it
makes reference to Wortham and whether or not Rule 412 is
constitutionally based. According to that commentary, there is
precedent for changing court rules at the supreme court level,
she said, adding that she does not believe such requires a
constitutional change. She acknowledged that it might be
interesting to see what other states have done with regard to
this issue.
Number 1290
REPRESENTATIVE OGG asked why the language, "if it is relevant to
the guilt or innocence" was left out of [paragraph] (1)(B),
remarking that perhaps such language ought to be inserted after
"statement" in order to narrow the use of the proposed
exception.
MR. BRANCHFLOWER said that guilt or innocence is the focus of
any trial, adding that ultimately, it is the judge's
responsibility to admit reliable evidence that goes to determine
guilt or innocence.
REPRESENTATIVE OGG stated his concern that the current language
is quite broad.
MR. BRANCHFLOWER, remarking that he did not know why the
aforementioned language was not included in paragraph (1)(B),
said that it should be added for clarity.
REPRESENTATIVE OGG recommended that there be a committee
substitute that included that language.
CHAIR McGUIRE agreed.
Number 1498
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),
Department of Administration (DOA), said that there is a need to
look at the purpose of Rule 412 and what it addresses, and to
remember the reason why this exclusionary rule came about. In
the past, law enforcement has broken the law to obtain evidence:
cheated, lied, or done something illegal. Such evidence has
been ruled as ineligible by the state, she added. She said that
the example given by Representative Gara was a good example of a
"swearing match" where the defendant, the sixteen-year-old kid,
would lose to the law enforcement officer. She said the current
rule will keep law enforcement in check and encourage them to
behave legally.
MS. WILSON said that the second part of the bill is extremely
problematic. It talks about using evidence illegally obtained
to impeach a witness, and this could be any witness. A witness
could be called by the state, set up as a "straw man" and then
the state could say, "This is an adverse witness, a hostile
witness, and I want to impeach them." That witness could be
used to then get in the evidence that has been suppressed. It
seems like an opportunity to get around the exclusionary rule,
because paragraph (2)(B) says, "any prosecution to impeach a
witness if the prosecution shows that the evidence was not
obtained in substantial violation of rights of the witness."
Therefore, she remarked, it seems like one wouldn't necessarily
even have the defendant taking the stand in that situation;
instead, statements made by a witness called by either the state
or the defense could be used against a defendant. This
possibility certainly raises concern, she added.
MS. WILSON said that some version of the current evidence rule
has been in effect since 1979, mentioning that there are
specific Alaska cases in which the Alaska Supreme Court has used
this rule. She agreed that the Alaska State Constitution is
more broadly construed than the U.S. Constitution and, as a
result, there are constitutional underpinnings to this rule
regarding due process and other rights which insure that the
police are not encouraged to behave illegally by canceling out
the current rule regarding illegally obtained evidence if the
defendant elects to testify.
CHAIR McGUIRE remarked that at the federal level, a person would
be subject to what is being proposed via HB 349 because the
federal government has had a similar rule in place since 1971
due to a U. S. Supreme Court case.
Number 1833
MS. WILSON pointed out, however, that Alaska laws do not mirror
federal laws, adding that the Harris v. New York decision is an
example of the Alaska Supreme Court disagreeing with the merits
of a [federal] decision. She said that in many respects, Alaska
has differed from the federal government in how it prosecutes
cases, and mentioned the USA PATRIOT Act as an example. The
right to privacy is in the Alaskan State Constitution but not in
the Federal Constitution, she remarked, suggesting that none
would want to minimize that right by comparing it to what might
happen on that issue in federal court.
CHAIR McGUIRE argued, however, that Alaskans also celebrate
personal responsibility, and opined that a defendant who would
attempt to use [the current rule] as a [sword] is a coward. She
said that she is concerned about the defendant's rights, also,
but [the situation that occurred in Anchorage] goes too far. In
conclusion she said:
I just think that you cannot use it as a [sword] ...,
and you ought to have the ability, if you take the
stand, to explain [a prior statement] away; if you
made that statement under duress, if you made that
statement because you didn't understand or out of
confusion, you will be afforded the opportunity to
explain that to a jury, but I don't think you can take
the stand simply to use it as a [sword].
REPRESENTATIVE GARA said that a bill is never black and white
and that sometimes when a bill passes, "a lot of things are
better, and some things are worse, and if you don't pass the
bill, a lot of things are bad, but some things are better." He
characterized HB 349 as one of those bills. For example, if HB
349 is not passed, perhaps a certain number of defendants will
get away without being held accountable, but if it is passed,
perhaps law enforcement officers will receive the message that
they can engage in illegal conduct without suffering any
consequences. He indicated that he wanted to move beyond having
the debate merely be: if one opposes the bill then one is pro-
crime, and if one supports the bill then one is anti-civil
liberties.
REPRESENTATIVE GARA surmised that the circumstance the sponsors
are trying to get to is the circumstance in which a defendant
decides to testify, but has made, or is alleged to have made,
prior inconsistent statements; the sponsors want to be able to
impeach that defendant. He asked whether HB 349 allows
illegally obtained evidence to be used even if the defendant
doesn't take the stand.
Number 2031
MS. WILSON said yes, noting that paragraph (2)(B) refers to
impeaching a witness.
REPRESENTATIVE GARA asked if there would be a way to word that
provision so that it only addresses the issue of the defendant
taking the stand.
MS. WILSON suggested that changing the word "witness" to
"defendant" would be an improvement.
REPRESENTATIVE SAMUELS indicated that he would have Legislative
Legal and Research Services look into that issue.
CHAIR McGUIRE offered that the kind of situation the bill is
attempting to address is when the defendant chooses to take the
stand in a perceived attempt to use this law as a [sword].
REPRESENTATIVE SAMUEL said that it is not an easy issue, and
gave examples of citizens being [victimized] by a guilty
defendant who had confessed but was then acquitted. He said
that this is how citizens lose faith in their government. There
is a balancing act that needs to happen, he remarked.
CHAIR McGUIRE agreed, adding that she didn't want to encourage
police misconduct or coercion of defendants and witnesses.
REPRESENTATIVE GRUENBERG referred to page 2, line 4, and asked
whether that language contained a typo; specifically, did there
need to be a "the" between "to" and "issue". In other words,
should that language read: "if it is relevant to the issue".
REPRESENTATIVE SAMUELS said he would research that point.
Number 2248
ANNA FAIRCLOUGH, Executive Director, Standing Together Against
Rape (STAR); Member, Anchorage Assembly, Municipality of
Anchorage (MOA), asked whether the defendant actually had to use
a violation of Miranda as a defense in order to trigger what is
being proposed in HB 349.
REPRESENTATIVE SAMUELS replied that it applies if the defendant
chooses to testify that he is innocent, but there is an old
statement admitting guilt; then the old statement is brought in
and the issue of guilt or innocence is left up to the jury to
decide.
MS. FAIRCLOUGH surmised, then, that if the defendant chooses to
use it as a [sword] so that evidence can't come forward, then
he/she is the one who causes that evidence to be excluded, not
the police officer.
CHAIR McGUIRE agreed and said that it is the defendant who makes
the plea for evidence to be excluded based on police misconduct
[or] a Miranda violation; that evidence is then off the table.
MS. FAIRCLOUGH restated her opinion that it wouldn't matter if
the tape is lost or not as long as the defendant is not the one
going forward using that excuse as his defense.
REPRESENTATIVE GARA said that it won't matter if the defendant
is the first one to claim the statement was taken illegally,
because ultimately the court will address that issue.
TAPE 04-4, SIDE B
MS. FAIRCLOUGH relayed that she supports HB 349, adding that she
wants to see credibility returned to the justice system.
Number 2346
REPRESENTATIVE GRUENBERG made a motion to adopt [Amendment 1],
to add "the" on page 2, line 4, between "to" and "issue".
CHAIR McGUIRE asked if there was any objection [to Amendment 1].
REPRESENTATIVE SAMUELS said he had no objection to Amendment 1.
[Although Representative Holm stated that he objected, this
appeared to be in jest; therefore, Amendment 1 was treated as
adopted.]
REPRESENTATIVE GRUENBERG - turning attention to page 1, line 15,
and on page 2, [line 7] - relayed that there was no such thing
as a prosecution to impeach a witness. He said that impeachment
is a trial technique, an evidentiary technique. He said he
wanted to have that part of the bill clarified, perhaps changed,
because there is "no such animal."
CHAIR McGUIRE remarked that perjury would be a separate trial on
the same basic [case].
REPRESENTATIVE GRUENBERG agreed, and suggested adding a comma
after "prosecution" on page 1, line 15, and on page 2, [line 7].
He acknowledged, however, that it might be better to not limit
the bill to a prosecution, but allow for impeachment in a civil
context, also.
Number 2248
CHAIR McGUIRE agreed, and asked Representative Samuels to
investigate that issue.
REPRESENTATIVE GRUENBERG noted that except in a civil case, the
trier of fact cannot comment to the jury when somebody claims,
for example, the privilege against self-incrimination. He said
that if the evidence is illegally obtained, there would have to
be a caution that it can only be used for the purpose of
impeachment. He opined that such a caution would be absolutely
essential for HB 349. He added that if the prosecution is going
to be using illegal evidence for the limited purpose of
impeachment, they should be required to give advance notice to
the defense that if their witness takes the stand there will be
a hearing outside the presence of the jury. The judge, then,
would determine whether a cautionary instruction could be given
or whether the prejudicial value would outweigh the probative
value. He then turned to the issue of a civil prosecution, and
suggested that that should be investigated as well.
CHAIR McGUIRE, addressing Representative Samuels, asked that
before the bill's next hearing, he give consideration to the
issue of whether to include both civil and criminal cases, and
to the issue of clarifying the bill as it relates to
impeachment.
REPRESENTATIVE SAMUELS said he thought the prosecution shouldn't
have to give notice that it was going to implement a court rule.
Instead, he opined, the defense lawyer should tell his/her
client that if the client changes his/her story, the issue will
come back to the table. He remarked that he'd hate to put a
burden on the prosecution.
REPRESENTATIVE GRUENBERG stated, however, that the danger is
that in a criminal case, the jury can't help but consider
illegally obtained evidence beyond the purpose of impeachment,
and this could severely impact the rights of the defendant.
What is normally done in that situation is for a hearing to be
held outside the presence of the jury in order to argue that
issue. But in order to do that, notice has to be given. The
issue is not whether the lawyer knows the rules of evidence. If
one waits until the person has taken the stand and "opened the
door," then it's too late, he opined.
Number 2007
REPRESENTATIVE SAMUELS maintained his belief that the
prosecution does not know what is going to be said and the
defense is not going to tell them.
CHAIR McGUIRE said that the court would decide what to put into
the jury instructions. She said she assumes that any judge
would make it clear to the jury that they may only take the
statements into account for impeachment purposes, not to the
question of guilt or innocence.
REPRESENTATIVE GRUENBERG pointed out that [those instructions]
would be given at the time the testimony is given.
CHAIR McGUIRE surmised that this issue wouldn't be addressed by
the bill; rather, it will be decided by the court.
REPRESENTATIVE GARA, in conclusion, pointed out that sometimes,
when it is easier to prosecute a guilty person, it is then also
easier to prosecute an innocent person. He suggested that a lot
more discussion of the bill is needed to get a balance.
[HB 349, as amended, was held over.]
ADJOURNMENT
Number 1938
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:50 p.m.
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