01/30/2004 01:10 PM House JUD
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
January 30, 2004
1:10 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
Representative Jim Holm
Representative Dan Ogg
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."
- MOVED CSHB 348(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 398
"An Act relating to domestic violence fatality review teams."
- MOVED CSHB 398(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 357
"An Act relating to restitution; and providing for an effective
date."
- MOVED CSHB 357(JUD) OUT OF COMMITTEE
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."
- HEARD AND HELD
HOUSE BILL NO. 334
"An Act relating to unlawful exploitation of a minor."
- BILL HEARING POSTPONED
PREVIOUS ACTION
BILL: HB 348
SHORT TITLE:NOTICE RE OFFICE OF VICTIMS RIGHTS
SPONSOR(S): REPRESENTATIVE(s) STOLTZE, DAHLSTROM, SAMUELS,
MCGUIRE
Jrn-Date Jrn-Page Action
01/12/04 2287 (H) PREFILE RELEASED 1/2/04
01/12/04 2287 (H) READ THE FIRST TIME -
REFERRALS
01/12/04 2287 (H) JUD
01/12/04 2287 (H) REFERRED TO JUDICIARY
01/26/04 (H) JUD AT 2:00 PM CAPITOL 120
01/26/04 (H) Heard & Held
01/26/04 (H) MINUTE(JUD)
01/30/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 398
SHORT TITLE:DOMESTIC VIOLENCE FATALITY REVIEW TEAM
SPONSOR(S): REPRESENTATIVE(s) DAHLSTROM
Jrn-Date Jrn-Page Action
01/23/04 2376 (H) READ THE FIRST TIME -
REFERRALS
01/23/04 2376 (H) JUD
01/23/04 2376 (H) REFERRED TO JUDICIARY
01/26/04 (H) JUD AT 2:00 PM CAPITOL 120
01/26/04 (H) Scheduled But Not Heard
01/28/04 (H) JUD AT 1:00 PM CAPITOL 120
01/28/04 (H) Heard & Held
MINUTE(JUD)
01/30/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 357
SHORT TITLE:RESTITUTION
SPONSOR(S): REPRESENTATIVE(s) SAMUELS, STOLTZE, MCGUIRE,
DAHLSTROM
Jrn-Date Jrn-Page Action
01/12/04 2289 (H) PREFILE RELEASED 1/2/04
01/12/04 2289 (H) READ THE FIRST TIME -
REFERRALS
01/12/04 2289 (H) JUD
01/12/04 2289 (H) REFERRED TO JUDICIARY
01/26/04 (H) JUD AT 2:00 PM CAPITOL 120
01/26/04 (H) Heard & Held
01/26/04 (H) MINUTE(JUD)
01/26/04 (H) MINUTE(JUD)
01/30/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 397
SHORT TITLE:DEFENSE CONTACTS WITH VICTIMS & WITNESSES
SPONSOR(S): REPRESENTATIVE(s) MCGUIRE
Jrn-Date Jrn-Page Action
01/23/04 2375 (H) READ THE FIRST TIME -
REFERRALS
01/23/04 2375 (H) JUD
01/23/04 2375 (H) REFERRED TO JUDICIARY
01/26/04 (H) JUD AT 2:00 PM CAPITOL 120
01/26/04 (H) Scheduled But Not Heard
01/30/04 (H) JUD AT 1:00 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.
REX SHATTUCK, Staff
to Representative Nancy Dahlstrom
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Offered to respond to questions on HB 398
on behalf Representative Dahlstrom, sponsor.
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 398, testified to
the changes made in the proposed committee substitute (CS);
assisted Representative McGuire, sponsor, with the presentation
of HB 397.
ALLEN STOREY, Lieutenant
Central Office
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Testified on proposed amendments to HB 398.
SARA NIELSEN, Staff
to Representative Ralph Samuels
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Responded to questions on HB 357 on behalf
of Representative Samuels, one of the prime sponsors.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 357.
LINDA WILSON, Deputy Director
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
357 and suggested a change; Provided comments during discussion
of HB 397.
STEPHEN BRANCHFLOWER, Director
Office of Victims' Rights (OVR)
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
397.
ACTION NARRATIVE
TAPE 04-7, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:10 p.m. Representatives
McGuire, Anderson, Samuels, Gara, and Gruenberg were present at
the call to order.
HB 348 - NOTICE RE OFFICE OF VICTIMS RIGHTS
Number 0093
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 0193
REPRESENTATIVE GRUENBERG moved to adopt the proposed committee
substitute (CS) for HB 348, Version 23-LS1320\Q, Luckhaupt,
1/28/04, as the working document. There being no objection,
Version Q was before the committee.
Number 0207
REPRESENTATIVE BILL STOLTZE, Alaska State Legislature, one of
the prime sponsors of HB 348, noted that Version Q has a
positive change, and that Representative Gara had suggested
adding some extra information [regarding the Violent Crimes
Compensation Board (VCCB)] to the Office of Victims' Rights'
brochure and putting such language in the bill in the form of a
message from the legislature to the Office of Victims' Rights
(OVR). Representative Stoltze talked about staff's alternative
suggestion to add a letter of intent.
REPRESENTATIVE GRUENBERG turned attention to page 3, line 14 of
the bill, and said it seemed to him that if the victim is of an
age in which he/she can read, the notice should be given to the
victim as well as the parent or guardian. He suggested the
following as an amendment:
Page 3, line 14, after "shall"
Insert "also"
REPRESENTATIVE GRUENBERG said this language would make it clear
that the notice should go the victim and the parent.
REPRESENTATIVE STOLTZE said he did not have an opinion on the
proposed amendment.
Number 0388
REPRESENTATIVE GRUENBERG moved to adopt the foregoing as
Amendment 1.
Number 0411
REPRESENTATIVE GARA objected for purposes of discussion. He
asked Representative Gruenberg to consider that the amendment
may create an [additional step in the process] if either the
parent or the victim are not at the same location.
REPRESENTATIVE GRUENBERG clarified that it is his intent that
the notice be given to the person that is not present as soon as
possible. He said the situation may arise anytime, for example,
if the victim is unconscious. Representative Gruenberg said he
thought common sense should be used.
REPRESENTATIVE GARA asked if [the amendment would require that
both the parent and the victim be given the notice]. He
suggested that notifying both the parent and the victim might be
an administrative burden.
REPRESENTATIVE GRUENBERG said he was sure it could be dealt with
if it became a problem. He said he believed it was very
important that both the parent and the victim have the notice.
REPRESENTATIVE SAMUELS, one of the prime sponsors of HB 348,
said a 15-year-old rape victim should know his/her rights
regardless of whether the parents are present. He said he was
in agreement with Representative Gruenberg that it would help a
young victim to understand his/her rights.
CHAIR McGUIRE, one of the prime sponsors of HB 348, surmised
that Amendment 1 would require that both the victim and the
parent be given the notice. If either the victim or parent is
not present during the process, the notice would be provided to
the absent party through first class mail. She said the
intention is not for the notification to be a burden, but the
committee feels it is appropriate that both parties be notified.
REPRESENTATIVE GARA removed his objection.
Number 0572
CHAIR McGUIRE asked if there was any further objection to the
motion to adopt Amendment 1. There being no objection,
Amendment 1 was adopted.
Number 0600
REPRESENTATIVE GARA moved to adopt Amendment 2, [23-LS1320\H.2,
Luckhaupt, 1/30/04] which read:
Page 1, line 2, following "rights":
Insert "and the Violent Crimes Compensation
Board"
Page 3, following line 17:
Insert new bill sections to read:
"* Sec. 2. AS 24.65.100 is amended by adding a new
subsection to read:
(d) The victims' advocate shall provide written
material to be given out to victims of crime as
required by AS 12.61.010. The written material must
contain a brief statement about compensation available
from the Violent Crimes Compensation Board and contact
information for that board.
* Sec. 3. The uncodified law of the State of
Alaska is amended by adding a new section to read:
APPLICABILITY OF SECTION 2 OF THIS ACT. Section
2 of this Act requires the victims' advocate to
include within brochures or other written material to
be given to certain crime victims information about
compensation available from the Violent Crimes
Compensation Board. This requirement applies only to
brochures or other written material printed after the
effective date of this Act. The victims' advocate may
continue to supply brochures or other written material
printed before the effective date of this Act until
those brochures or materials are exhausted."
Number 0617
REPRESENTATIVE SAMUELS objected.
REPRESENTATIVE GARA said he wanted to include information in the
OVR's brochure that specifies that there is also a Violent
Crimes Compensation Board.
REPRESENTATIVE GARA suggested amending Amendment 2, as follows:
Line 9,
Delete "compensation available from"
[Although there was no further discussion on this point, this
amendment to Amendment 2 was treated as adopted.]
REPRESENTATIVE GRUENBERG said he liked the idea of the language
"compensation available from" because it is possible that
certain crimes are compensable even if others are not.
REPRESENTATIVE GARA said that determining whether a crime was
compensable would require a "legal call" by the person handing
out the pamphlets and [it is not his intention] to make the
person providing the information an expert in this area. He
said he wanted to put as minimal a requirement as possible upon
the OVR to include a very brief statement in its brochure that
the VCCB exists and include the contact information. He said he
crossed out the extra words because he didn't want to make the
statement more than a couple of sentences if the [OVR] feels
that is all that will fit in a brochure. Representative Gara
expressed frustration about the length of Amendment 2, and said
if the OVR wants to make the information more elaborate, that
would be great, but he wanted to give the OVR that discretion.
He noted that the reason that he wanted to add an amendment
rather than a letter of intent is because with a letter of
intent, the statements of purpose disappear very shortly after
the law is passed. He indicated that the successor to the
current director of the OVR might not see the [letter of
intent].
REPRESENTATIVE GARA again moved to adopt Amendment 2 [as
amended].
REPRESENTATIVE SAMUELS objected.
REPRESENTATIVE STOLTZE noted that compensation doesn't get
discussed until there is an adjudication of guilt or innocence,
and that's really far down the line. He said there is not a
presumption that there is a compensation that early in the
process.
Number 0860
CHAIR McGUIRE indicated her hope that just Section 2 [of
Amendment 2] would remain; although, she added, Section 3 of
Amendment 2 is needed to explain that there is no liability.
She surmised that generally, applicability provisions do not
show up in future statutes, and mentioned that the OVR might be
reprinting its brochure in March anyway.
REPRESENTATIVE GARA agreed that Section 3 will disappear. He
explained that the uncodified laws will show up in the session
laws next year but will never show up in the statute books
afterward. He said he shared members' frustration because he
thought the amendment could be a lot shorter than what came back
from [the drafter].
REPRESENTATIVE GRUENBERG asked if Section 3 of Amendment 2 could
be done as a letter of intent, adding that because the committee
is doing a letter of intent anyway, if Representative Gara would
remove Section 3 from Amendment 2, when the committee takes up
the letter of intent, Section 3's language can be added to it.
CHAIR McGUIRE said Section 2 supercedes the letter of intent
that the committee currently has, so the new letter of intent
could actually be the concept contained in Section 3 [of
Amendment 2].
Number 0955
REPRESENTATIVE GARA moved to amend Amendment 2 by deleting
Section 3. There being no objection, it was so ordered.
CHAIR McGUIRE asked if there was objection [to the motion to
adopt Amendment 2, as amended]. There being none, Amendment 2,
as amended, was adopted.
Number 1011
REPRESENTATIVE GRUENBERG moved to report the proposed CS for HB
348 [Version 23-LS1320\Q, Luckhaupt, 1/28/04], as amended, out
of committee [with individual recommendations and the
accompanying zero fiscal notes]. There being no objection, CSHB
348(JUD) was reported from the House Judiciary Standing
Committee.
CHAIR McGUIRE turned attention to the original letter of intent,
which read [original punctuation provided]:
It is the intent of the Alaska House of
Representatives that the Office of Victim's Rights
provide contact information for the Violent Crimes
Compensation Board on their informational brochure
offered to the public.
REPRESENTATIVE GRUENBERG explained that the new letter of intent
would read:
APPLICABILITY OF SECTION 2 OF THIS ACT. Section 2 of
this Act requires the victims' advocate to include
within brochures or other written material to be given
to certain crime victims information about
compensation available from the Violent Crimes
Compensation Board. This requirement applies only to
brochures or other written material printed after the
effective date of this Act. The victims' advocate may
continue to supply brochures or other written material
printed before the effective date of this Act until
those brochures or materials are exhausted.
Number 1093
CHAIR McGUIRE asked if there was any objection to reporting the
new letter of intent CSHB 348(JUD). There being no objection,
the letter of intent for CSHB 348(JUD) was reported from the
House Judiciary Standing Committee.
REPRESENTATIVE GRUENBERG suggested that the House Judiciary
Standing Committee provide a zero fiscal note specifying the
committee's intention that the state does not spend any money on
HB 348.
CHAIR McGUIRE, in response, said the committee would [create a
zero fiscal note].
[CSHB 348(JUD) was reported from the House Judiciary Standing
Committee.]
HB 398 - DOMESTIC VIOLENCE FATALITY REVIEW TEAM
Number 1175
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 398, "An Act relating to domestic violence
fatality review teams." [In members' packets was a proposed
committee substitute (CS) for HB 398, Version 23-LS1321\I,
Luckhaupt, 1/29/04.]
Number 1181
REX SHATTUCK, Staff to Representative Nancy Dahlstrom, Alaska
State Legislature, sponsor, offered to respond to questions on
behalf of Representative Dahlstrom. He said the committee was
thorough in looking at the bill during the previous meeting.
Number 1191
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature, began
discussion of the amendments adopted during the meeting on
1/28/04. Turning to Version I, she pointed out that inclusion
of the language "or earlier" on page 1, line 10, creates sort of
a discrepancy because it may be contradictory to specifying that
a review team can only be started once a case has been completed
or adjudicated.
MS. TONDINI explained that although one of the amendments
adopted at the bill's prior meeting added a definition section
for the purpose of defining domestic violence, this change does
not appear in Version I because domestic violence as defined in
AS 18.66.990 already applies.
MS. TONDINI turned attention to the page 2, lines 7-8, of
Version I, and noted that it provides that "serious physical
injury" has the meaning given in AS 11.81.900, so Version I does
not contain a separate definitions section. She indicated that
the other amendments adopted on 1/28/04 have been incorporated
into Version I.
MS. TONDINI reminded members that at the meeting on 1/28/04,
Representative Gruenberg posed a few technical questions to the
drafters. She turned attention to page 3, line 2, of Version I,
specifically the language "or" following "team", and said [the
drafters] decided to leave the language as "or" and the sponsor
agreed. Ms. Tondini, in conclusion, turned attention to page 3,
line 13, of the original bill and explained that the language
"damage" was changed to "damages".
Number 1381
REPRESENTATIVE SAMUELS moved to adopt the proposed CS for HB
398, Version 23-LS1321\I, Luckhaupt, 1/29/04, as the work draft.
There being no objection, Version I was before the committee.
MR. SHATTUCK turned attention to page 1, line 10, and expressed
concerns about the language "or earlier"; he said the sponsor
would prefer to [delete the language] "or earlier" because it
was felt that it would impact cases that perhaps were "in play".
REPRESENTATIVE GRUENBERG said it is his belief that it is a good
idea to have "or earlier" included in the language because it
gives discretion to the commissioner or the person in the
municipality to do it earlier if he/she wanted to. He said he
couldn't foresee a situation off hand that it would involve, but
his gut feeling is that there could be such a situation. He
remarked, "It's a chicken soup amendment," and suggested that
[law enforcement] obviously would not do anything to "screw up"
the investigation. He said he thought it was very clear that
[the committee] is not authorizing that. He also said he would
hate to see [law enforcement] "hamstrung" from the investigation
because [investigators] may think they may get a witness at some
future date and technically it is not put in the closed files.
REPRESENTATIVE SAMUELS said he tends to agree with eliminating
the language because, in an ongoing investigation, an
investigator can't comment on the case at all. He said that in
a high publicity case there may be political pressure on
[officials] to convene [a domestic violence fatality review]
team because of the facts of the crime, but [because the
investigation is ongoing] the district attorney can't talk about
the case. He remarked that although he understood
Representative Gruenberg's point, he didn't want to run into
situation in which somebody convenes [a domestic violence
fatality review team] to look good but people can't be
completely forthcoming.
REPRESENTATIVE GRUENBERG suggested that [law enforcement
officials] are going to be bright, educated, sophisticated, very
highly trained people, and he didn't want to see them prevented
from doing something [involving] an old case. He explained that
some murder [cases] can go on forever and never be solved, and
those are the kinds of cases that have a problem which could be
addressed via HB 398. Without "or earlier" remaining, he said,
he is afraid that exactly the opposite will occur.
Number 1565
ALLEN STOREY, Lieutenant, Central Office, Division of Alaska
State Troopers, Department of Public Safety (DPS), testified
that if [the commissioner] wanted to [convene a domestic
violence fatality review team] before final adjudication, then
maybe such could be qualified via use of, "an earlier
appropriate time" or something along that line. He said he
could see that there may be an incident in which it would be
necessary to review the process at an earlier time, but he could
also see that it could create conflicts in the course of an
investigation if done at an inappropriate time.
REPRESENTATIVE GRUENBERG said that suggestion would work for
him.
MR. SHATTUCK said the sponsor would agree with that
[suggestion].
REPRESENTATIVE GARA said he didn't want to lose sight of the
purpose of the domestic violence fatality review team, which is
to figure out how somebody ended up becoming a victim and where
the system failed. He said once the information needed to
review a case is [complete], the domestic violence fatality
review team will act responsibly and indicate that it is the
time to investigate it. He said sometimes there is the problem
in that a case doesn't get adjudicated because an issue goes up
on appeal, and one would not want to make the domestic violence
fatality review team wait when it should just figure out what
went wrong and why the victim became victimized. He said this
is one of those statutes that no matter how it is written there
would be unintended consequences one way or the other, and even
though there might be that time when the domestic violence
fatality review team would be improperly convened, he would be
willing to take that risk. Representative Gara said the earlier
suggested discretion is something that should be given to [the
convening authority].
CHAIR McGUIRE surmised that the drafters are saying that adding,
"or earlier" renders, "has been completed or adjudicated by law
enforcement" irrelevant. She indicated a preference for not
including "or earlier".
REPRESENTATIVE GRUENBERG said he thought, "or earlier" is
important because normally one would want to wait until the
investigation is completed.
CHAIR McGUIRE said it would be fine with her to do something
along the lines of what Lieutenant Storey suggested, but didn't
know who would determine when it would be appropriate and when
it wouldn't.
Number 1719
REPRESENTATIVE SAMUELS suggested amending the language on page
1, line 10, to do exactly as Lieutenant Storey said by deleting
the word "earlier", so it would read "or at an earlier
appropriate time". He remarked, "Generally speaking, you'd wait
until the adjudication was finished, but you could make
determinations and not be willing to give the other ... folks
some benefit of the doubt."
REPRESENTATIVE GRUENBERG said he thought the person to determine
that point would be the convening authority. He stated that he
was in support of the amendment.
Number 1759
REPRESENTATIVE SAMUELS moved to adopt Amendment 1, to make page
1, line 10, read as follows: "completed or adjudicated by law
enforcement or at an earlier appropriate time, a domestic
violence fatality". There being no objection, Amendment 1 was
adopted.
Number 1774
REPRESENTATIVE SAMUELS moved to adopt Amendment 2, which read
[original punctuation provided]:
pg. 1, Line 7 after state Insert: for which the
Department of Public Safety has primary responsibility
for providing police services.
Number 1781
CHAIR McGUIRE objected for discussion purposes.
REPRESENTATIVE SAMUELS said Amendment 2 came from the sponsor's
office. He explained that at the previous meeting the committee
had discussed wanting to ensure that somebody had the authority
without getting into a "turf battle" between a city or a
municipality and DPS.
MR. SHATTUCK said the sponsor would prefer not to offer that
amendment from [DPS] at this particular time.
Number 1803
REPRESENTATIVE SAMUELS withdrew Amendment 2.
Number 1809
REPRESENTATIVE SAMUELS moved to report the proposed CS for HB
398, [Version 23-LS1321\I, Luckhaupt, 1/29/04], as amended, out
of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, CSHB
398(JUD) was reported from committee.
HB 357 - RESTITUTION
Number 1847
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. [Before the committee was the proposed committee
substitute (CS) for HB 357, Version 23-LS1384\D, Luckhaupt,
1/20/04, which was adopted as a work draft on 1/26/04.]
Number 1853
REPRESENTATIVE SAMUELS moved adopt the proposed CS for HB 357,
labeled 23-LS1384\H, Luckhaupt, 1/29/04 as the work draft.
There being no objection Version H was before the committee.
Number 1860
SARA NIELSEN, Staff to Representative Ralph Samuels, Alaska
State Legislature, spoke on behalf of Representative Samuels,
one of the prime sponsors of HB 357, regarding the changes
incorporated into the CS. She explained that Section 5 of
Version D was totally removed. This was the section that
clarified that a minor should remain [accountable] for
restitution past age 19. Because this is already the law, she
remarked, Section 5 of Version D seemed to complicate the issue
rather than clarify it, and so the language was removed.
MS. NIELSEN turned attention to page 1, line 4, and page 1, line
10, which now contain the language "unless the victim or other
person expressly declines restitution"; this language is
intended to address a scenario in which a victim simply doesn't
want restitution for whatever reason, for example, if the victim
would rather have the offender go to alcohol treatment instead
of paying restitution. She turned attention to page 2, lines
15-19, and said this new Section 4 was added so that a defendant
would be able to come forward at any time and pay his/her
restitution. Thus, if that person had been ordered to pay
restitution but was making a payment that was not part of the
payment schedule, the court should still accept the money.
MS. NIELSEN turned attention to the fourth change, page 2, line
31 [through page 3, line 1], and she said the following language
was added: "The court may not reduce an order of restitution
but may change the payment schedule." She said this is sort of
a compromise to earlier versions' repeal of AS 12.55.045(f).
She noted that Representative Gruenberg was concerned that the
court wasn't taking into consideration the ability to pay; this
additional language simply gives a defendant [who is
experiencing financial difficulties the opportunity to pay
restitution at a later time].
MS. NIELSEN turned attention to page 3, lines 2-7, the
delinquent minor section, which [mirrors] what was done in the
adult section to allow the court to accept [a restitution]
payment at anytime.
Number 1970
REPRESENTATIVE GRUENBERG said he supports the language on page
2, line 31, through page 3, line 1, which proposes to change
Title 12. He pondered whether that kind of language could also
be put in Title 47 regarding delinquency. He said the committee
allowed the court to do a payment schedule for adults but it had
not done that for juvenile delinquents. Representative
Gruenberg said the two statutes track each other, one is for the
adults and the other is for the delinquents, and there may be
something already in the delinquency statute, but he wanted that
to be investigated and, if appropriate, add that sentence.
REPRESENTATIVE SAMUELS turned attention to page 3, line 1, and
suggested adding the words, "unless specifically requested by
the victim" to address situations in which a victim requests
that a restitution order be dropped.
REPRESENTATIVE GRUENBERG warned Representative Samuels to be
careful that such language is properly drafted.
MS. NIELSEN, on the question of whether HB 357 could be
challenged on a constitutional basis, said she had checked with
the Department of Law (DOL), which relayed that there shouldn't
be any such challenges].
Number 2115
REPRESENTATIVE SAMUELS moved to adopt [Amendment 1], which he
said would stipulate that if the victim chooses, he/she would be
able to drop the order of restitution.
Number 2125
REPRESENTATIVE GRUENBERG objected for purposes of discussion.
He asked that Amendment 1 be clarified.
REPRESENTATIVE SAMUELS explained that Amendment 1 would be:
Page 2, line 31, after "restitution"
Insert ", unless specifically requested by the
victim,"
REPRESENTATIVE GRUENBERG removed his objection.
REPRESENTATIVE SAMUELS asked if it is possible for a victim to
be threatened or coerced into dropping a restitution order
against his/her will.
Number 2174
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
that she had never seen that situation arise, but could
certainly imagine that scenario if a [defendant] is under a lot
of stress with a high restitution payment and tries to put
pressure on the victim.
REPRESENTATIVE GRUENBERG said that in domestic violence
situations, a lot of times [an offender] will pressure the
victim to drop the charge. He offered a hypothetical situation
in which a victim is given the choice by her abusive ex-husband
of either dropping the restitution order against him or having
to fight him for custody of their child.
Number 2240
REPRESENTATIVE SAMUELS withdrew Amendment 1.
REPRESENTATIVE GRUENBERG asked if there is other language in the
bill similar to that in Amendment 1.
REPRESENTATIVE SAMUELS indicated that there is.
REPRESENTATIVE GRUENBERG asked Representative Samuels if he
wanted to remove such language from the bill.
REPRESENTATIVE SAMUELS said no, because there might be
situations in which the victim does not want restitution.
CHAIR McGUIRE, one of the prime sponsors of HB 357, indicated
that if the language is removed it might [create unintended
consequences.
REPRESENTATIVE GARA said it can be very expensive and time
consuming to prove restitution. He said sometimes there are
victims who do not want to be involved in the court process, so
there will be certainly be cases in which the court, prosecutor,
and defense attorney spend time calculating and ordering a full
restitution amount when the victim really doesn't care. He
explained that [language] on page 1 requires restitution to be
ordered unless the victim expressly declines. However, he said
it doesn't address the circumstance in which the case doesn't go
to trial, the victim never shows up, and the victim never
expresses whether he/she wants restitution, but the bill is
requiring a full hearing and litigation over the restitution
amount. He said maybe it is not a bad thing that a victim get
restitution even if he/she doesn't want it or care, but he
expressed concern about spending the money to require the scarce
resources of the judicial system to create the restitution order
if the victim doesn't care.
REPRESENTATIVE SAMUELS said he would assume that if there is
money involved, then most victims are going to want it if
they've suffered a financial loss. He acknowledged, though,
that there may be a small number of victims that aren't going to
follow through at least a little bit on the issue of
restitution. He offered the scenario in which a kid goes
through a neighborhood and shoots out 40 car windows, and said
that even if the [victim] doesn't want to go to court, all it
takes is a phone call from the district attorney to tell that
victim that he/she has restitution coming. He opined that even
though the victim might not have cared, he/she would still take
the restitution. Representative Samuels said that to him it is
about fairness, and that is the [purpose] of the bill - to try
to make people responsible for their actions.
TAPE 04-7, SIDE B
Number 2394
MS. CARPENETI relayed that victims are contacted and asked for
evidence of restitution.
REPRESENTATIVE GARA asked whether, if there was a court order
that asked the victim for receipts, but the victim hadn't handed
them in or told what the damages are, the bill says a full
restitution hearing must be made even without evidence of
restitution. He asked if the court is obligated to figure out
the restitution without the victim's help.
MS. CARPENETI said that practically, that's not how it would
work. She surmised that there would be a restitution hearing
and the court would ask for evidence of restitution, but if
there isn't evidence, the court would say the victim has a right
to restitution, but does not have to exercise that right.
REPRESENTATIVE GARA pointed out, however, that [proposed AS
12.55.045(a)(1)] says the court shall, unless the victim
expressly says no, order restitution. He said the court would
be in violation of the law if it ignored the language in the
bill.
MS. CARPENETI speculated that the court would simply say that
the restitution had been expressly declined.
REPRESENTATIVE GARA suggested changing the wording of [proposed
AS 12.55.045(a)(1), lines 4-5, to read, "The court shall, if
presented with competent evidence, order restitution".
REPRESENTATIVE SAMUELS gave an example of a broken windshield,
and asked whether, if there is no receipt given, there is no
restitution.
Number 2301
MS. CARPENETI agreed that if there are no claims or receipts
presented by the victim, then there is no restitution ordered.
REPRESENTATIVE SAMUELS objected [to the suggested change].
REPRESENTATIVE GARA said he disagrees with Representative
Samuels and Ms. Carpeneti, opining that if the law says the
court has to order restitution, then the court has to order
restitution, whether it is practical or not.
CHAIR McGUIRE said she did not like the word, "competent," but
agreed with the rest of the wording of the amendment.
REPRESENTATIVE SAMUELS said he did not want to put a further
burden on the victim by using the term, "competent evidence."
REPRESENTATIVE GRUENBERG suggested using, "If presented with
sufficient evidence."
CHAIR McGUIRE suggested just using "evidence", not "sufficient"
or "competent."
MS. CARPENETI said she thought that using just "evidence" would
be fine.
Number 2196
CHAIR McGUIRE moved to adopt Conceptual Amendment 2, as follows:
Page 1, line 4
After shall
Insert "when presented with evidence"
CHAIR McGUIRE noted that there are other areas of the bill that
would need conforming amendments; for example, page 1, line 9.
She indicated that the intent of Conceptual Amendment 2 is to
allow the drafter to make the necessary conforming changes.
Number 2163
CHAIR McGUIRE asked whether there were any objections to
Conceptual Amendment 2. There being none, Conceptual Amendment
2 was adopted.
Number 2150
REPRESENTATIVE SAMUELS spoke about Conceptual Amendment 3 which
reads [original punctuation provided]:
Sec. 47.12.120 Judgments and orders
(4) order the minor and minor's parent to make
suitable restitution in lieu of or in addition to the
court's order under (1), (2) or (3) of this
subsection; under this paragraph,
(A) except as provided in (B) of this paragraph,
the court may not refuse to make an order of
restitution to benefit the victim of the act of
the minor that is the basis of the delinquency
adjudication;...
New section:
The court may take into consideration the delinquent
minor's ability to pay past age 19, or the age in
which the court retains jurisdiction over the minor,
when determining the amount of the order of
restitution.
REPRESENTATIVE SAMUELS explained Conceptual Amendment 3 would
allow the court to take into consideration [the dependant's]
ability to pay when between the ages of 17 and 19. It states
that the court may look at [a minor's] ability to pay
[restitution] later on in life. He emphasized that Conceptual
Amendment 3 contains the word "may", thus the court would not be
mandated to [consider this point].
Number 2082
REPRESENTATIVE SAMUELS moved to adopt Conceptual Amendment 3.
Number 2078
REPRESENTATIVE GRUENBERG objected for discussion purposes. He
said he does not want to limit the age to 19. Rather, he wants
to give the court the discretion to spread the payments out,
regardless of the age of the juvenile.
REPRESENTATIVE SAMUELS said his intent is to get rid of the
artificial barrier of age, and referred the language labeled
"New Section", which says, "past age 19." He said sometimes the
jurisdiction of the court goes to age 21, and agreed that there
should be a payment schedule.
REPRESENTATIVE GRUENBERG said he supported the idea [of removing
age restrictions], but gave an example of a 13 year-old who has
caused $1,000 worth of damage. The court may say to make
payments which might end before the minor is 19. He said he
would like to see that situation addressed as well.
REPRESENTATIVE SAMUELS said if the payment schedule was
included, the problem would be addressed. The reason it says,
"may" is for just such cases involving younger kids.
REPRESENTATIVE GRUENBERG said he understood the meaning to be,
"it can be a series of payments, and it can extend past the age
of majority." He indicated that he wanted to see the bill with
the inclusion of Conceptual Amendment 3 before moving it from
committee. He then withdrew his objection.
Number 1987
CHAIR McGUIRE asked if there were any further objections to
Conceptual Amendment 3. There being none, Conceptual Amendment
3 was adopted.
REPRESENTATIVE GARA requested Ms. Carpeneti respond to
constitutional issues. He said he wants see that the bill
orders as much restitution as possible, without being
unconstitutional. He asked if a violation of a restitution
order counted as a violation of probation.
MS. CARPENETI replied that it did.
REPRESENTATIVE GARA stated that if probation is violated, [the
defendant] can be put in jail for the remainder of the original
sentence. He asked if that statement is correct.
MS. CARPENETI replied that it is.
REPRESENTATIVE GARA said, then, that there could be a
circumstance where a person was recklessly driving, had no
insurance, and injured a family causing $1,000,000 worth of
damages. He said there is no likelihood that the defendant
could come up with that amount. Therefore, if restitution of
the full amount is ordered by the court, and the defendant gets
out of jail and is unable to make all of the payments, he/she
will be thrown in jail because of a violation of the restitution
order. He asked if there was a possible due process problem in
that situation.
MS. CARPENETI replied that there is no debtor's prison in the
U.S., but noted that AS 12.55.051(a) specifically addresses the
problem. If a probation violation is only because of a lack of
payment of restitution and the defendant shows that he/she
cannot pay, they cannot be imprisoned.
Number 1872
REPRESENTATIVE GARA said he was comforted by [the statute] but
wanted to make sure that HB 357 would not conflict with it.
MS. CARPENETI asked if he is worried about the language, "shall
pay restitution."
REPRESENTATIVE GARA said he is worried that if [the bill] were
passed, that it would conflict with [a statute] on the books.
MS. CARPENETI said she did not see a conflict because the
constitution says a victim has the right to restitution and this
bill says [the victim] has the right to the order of
restitution.
REPRESENTATIVE GARA mentioned Southerland Statutory
Construction, which he described as a legal treatise that deals
with conflicting statutes. He cautioned that the committee stay
within this treatise's rules, adding that sometimes when there
are two conflicting statutes, the later one supercedes the
earlier one, which is invalidated. He surmised that such is not
the bill's intention, and suggested that this idea should be
stated somewhere [in the bill], and asked Ms. Carpeneti whether
she agreed.
MS. CARPENETI replied that stating the intent in this public
hearing, which is being recorded, is probably [sufficient].
REPRESENTATIVE GARA said he didn't think that people would rely
on what is said in this hearing.
MS. CARPENETI stated again that she did not see a problem. She
said she thought it was clear [in the bill] that a procedure
needed to be followed; whatever is ordered.
REPRESENTATIVE SAMUELS pointed out that the victim has the
constitutional right to restitution.
Number 1718
REPRESENTATIVE GRUENBERG said that when the legislature passes a
law and doesn't specifically affect other statutes, the court
will construe them harmoniously and will find that the prior
statute survives. He said he agrees with Ms. Carpeneti's
interpretation.
CHAIR McGUIRE opined that there has been sufficient discussion
on the record regarding this issue to show that this bill does
not mean to supercede AS 12.55.501(a). She pointed out that
Representative Samuels is correct [regarding the right to
restitution]; Article I, Section 24, of the Alaska State
Constitution says that crime victims have the right to
restitution from the accused.
REPRESENTATIVE GRUENBERG turned to Section 3, page 2, lines 12-
14, and noted that the court may order a payment schedule. He
asked if it is correct that in considering the payment schedule,
the court could consider the defendant's ability to pay.
REPRESENTATIVE SAMUELS said that is the intent.
REPRESENTATIVE GRUENBERG said that with that clarification he
would decline to offer an amendment.
REPRESENTATIVE GARA said he was going to vote for the bill, but
added that most attorneys do not look up legislative history,
especially in criminal cases.
Number 1587
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),
Department of Administration (DOA), thanked the sponsors of the
bill for the changes to it. She then suggested additional
wording, "at the request of the victim," to show that the
victims are exercising their right to the restitution. She said
she really appreciates the removal of the section that applied
to juvenile court jurisdiction. She explained that when a
petition to revoke probation is filed, and the person comes into
court and demonstrates that the inability to pay was not wilful
because he/she could not make the payments, then they get put
back on probation and are put on a more doable payment
schedule.. Her point, however, is that a whole new hearing has
to be scheduled because of not considering in the first place
the defendant's ability to pay. In conclusion, she opined that
the amendments have been a big improvement to the bill.
REPRESENTATIVE GRUENBERG asked if Ms. Wilson had any other
changes to suggest that hadn't been discussed yet.
MS. WILSON suggested that on page 1, line 4, instead of saying,
"unless the victim or other person expressly declines
restitution," replace it with, "shall at the request of the
victim,".
REPRESENTATIVE SAMUELS said he was not in favor of that [change]
because of the burden it puts on the victim to appear in court.
REPRESENTATIVE GRUENBERG said he wasn't suggesting that the
victim go to court, but rather that he/she simply signs a piece
of paper.
REPRESENTATIVE SAMUELS indicated that he still objects to the
suggested change.
CHAIR McGUIRE asked whether there was further discussion on the
bill. Hearing none, she asked for a motion.
Number 1343
REPRESENTATIVE GRUENBERG moved [to adopt the proposed committee
substitute (CS) for HB 357, Version 23-LS1384\H, Luckhaupt,
1/29/04, as amended, from committee with individual
recommendations and the accompanying fiscal notes]. There being
no objection, CSHB 357(JUD) was reported from the House
Judiciary Standing Committee.
HB 397 - DEFENSE CONTACTS WITH VICTIMS & WITNESSES
Number 1306
CHAIR McGUIRE announced that the final order of business would
be 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."
CHAIR McGUIRE, speaking sponsor of HB 397, explained that she
was contacted by a constituent whose 16-year-old daughter was
raped. The girl told her parents, the investigation was begun,
and charges were filed. While home alone, the girl received a
phone call from the perpetrator's defense attorney who asked if
she would be willing to talk to him. Agreeing to drive down to
the public defender's office before her parents got home, the
girl believed that she would be learning about case developments
during the meeting and wanted to give her side of the story.
Although her parents were not included, nor asked to
participate, the public defender recorded the girl's statements,
some of which were ultimately used against her. Later, when her
parents found out about this, they filed a claim against the
Public Defender Agency (PDA) because it was their understanding
that there had to be parental consent before questioning.
CHAIR McGUIRE said she thought there was a loophole, in that
recorded statements are treated differently than unrecorded
statements. She said that HB 397 would change the law to
require parental consent before a minor speaks with a defense
investigator or defense attorney. It allows a parent or
guardian to obtain a transcript of the recorded statements made
by the minor victim or witness. She said the bill has an
important exemption in that if the victim's parent or guardian
is the defendant, the victim would not have to obtain parental
consent.
CHAIR McGUIRE noted that one draft version of the bill addressed
only the [aforementioned] "loophole." However, while working on
the bill, the drafters noticed inconsistencies in [other]
sections of statute, so HB 397 now also deals with those
inconsistencies. Mentioning that there may not be enough votes
in the Senate to pass the bill's proposed court rule change, she
indicated that at the very least, she wants to get the bill's
intent into law.
Number 0943
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature, relayed,
on behalf of Chair McGuire, sponsor, that HB 397 amends AS
12.61.120(b), AS 12.61.120(c), AS 12.61.120(d), and AS
12.61.120(e). She pointed out that in almost all other areas of
the law where minors' rights are an issue, a juvenile is
normally deemed not competent to waive those rights. She said
the changes to [AS 12.61.120] are consistent with Alaska's laws
and policies. Upon adding the additional step that the defense
team would have to go through in order to contact the minor
victim or witness, the drafters felt that an indirect court rule
amendment should be included in the bill as a safeguard. She
remarked that the intent of the bill's current language is to
make all sections pertaining to this issue conforming.
REPRESENTATIVE GARA opined that what Chair McGuire is calling a
loophole is simply a policy choice. He suggested that the
reason why current law says that if the statement is recorded
then parental consent is not needed, is to avoid the
circumstance where someone tricks a minor into [testifying], and
there is no tape or record of it. A prior legislature said that
if there is a recording, it is possible to tell whether there is
any untoward conduct going on. He explained, if parental
consent is required, the defense investigator has to go back two
or three times to be [present] at the same place that the parent
and victim are together. He said HB 397 is going to require
more investigative work [on the defense's part], adding that he
wants the playing field to be level. He asked whether a
different rule was being adopted for the defense than for the
prosecution, or whether the rule would be the same. In other
words, if the investigator for the defense now has to get
consent from the parent, does the same rule apply for the
prosecution.
MS. TONDINI opined that the current policy and purpose behind
these statutes assumes that victims and witnesses are at risk of
harassment, intimidation, and invasion of privacy when they are
unwillingly thrust into the legal system. These potential harms
increase drastically when the victim is a minor, she said. She
went on to say that AS 12.61.120(b) deals with situations where
the defendant is proceeding without counsel and is deemed to be
dangerous and poses a threat to the victim or witness. The
court will protect the address and telephone number [of the
victim or witness] by providing it to a third party who acts as
the defendant's representative in contacting the victim or
witness. If the victim or witness is a minor, [the
representative] must go through the parent.
MS. TONDINI noted that Section 3 specifies that if the victim or
witness is a minor, [the defendant or defending attorney] must
also obtain permission from the parent to contact the victim or
witness. Notification of the rights of the victim or witness
must also be given to the parents. She said that proposed AS
12.61.120(d) changes the requirement that if the statement is
being recorded, parental consent is required. The bill says, in
proposed AS 12.61.120(e), the parent or guardian may obtain the
transcript of the recording. She explained that Section 6
states that if the defendant is the parent or guardian, the
defendant doesn't have the appropriate authority to provide the
consent.
Number 0378
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),
Department of Administration (DOA), said there is a
constitutional provision that says to treat all witnesses with
fairness and dignity. She said that the question of fairness
toward criminal defense investigators needs to be looked at
because this bill does not apply to police investigators, who
are not required to get the consent of a parent before they
interrogate or question a minor witness or alleged victim, nor
is a civil investigator required to do so. The bill is singling
out criminal defense investigators and would impair legitimate
investigative efforts. She said those efforts go to providing
the defendant with his/her constitutionally mandated right of
effective assistance from counsel.
MS. WILSON noted that the statute requiring written
authorization for a non-recorded statement is in AS 12.61.125,
which is not mentioned in HB 397 at all. That section's
specific purpose is related to victims and witnesses of sexual
offenses, and the example that Chair McGuire gave was a case of
an alleged sexual offense, Ms. Wilson said, adding that AS
12.61.120 says nothing, currently, about requiring a non-
recorded statement to have parental consent.
MS. WILSON explained that when one has a defense investigator
doing a legitimate investigative effort, it is another search
for the truth. When good work is done by the defense team, it
often results in flushing out relevant facts in a case. Those
facts can ultimately resolve the case, short of trial, either
because all of the problems have been resolved, or possible
defenses have been found. There may be a situation where, the
first time the witness is allowed to be questioned by the
defense team, is at trial. More cases may go to trial if there
are less opportunities and more barriers to the ability of the
defense investigators to do the work they need to do.
MS. WILSON said the focus of the bill seems to be from the
perspective of the sex offense case, so it is possible that this
could be limited to simply changing AS 12.61.125. It would be
an easy fix to apply the requirement for written authorization
from the victim or witness, whether [the testimony is] recorded
or not recorded, she said, adding that it could be expanded to
every case dealing with witnesses. There are concerns with
older teens getting written or specific consent from a parent.
There is going to be more investigative evidence required by the
defense. The bill is singling out the criminal investigators,
she said, noting that it this does not just say "notify", it
says, "get their consent".
TAPE 04-8, SIDE A
Number 0001
MS. WILSON concluded by remarking that under HB 397, police
still wouldn't have to get the consent of the parents even
though the defense would. She said she is not sure that that's
very fair.
CHAIR McGUIRE explained that although the aforementioned sexual
assault case was what prompted her to look at the current
statutes regarding parental notification, the intent was to have
HB 397 apply to more than just sexual assault cases.
Number 0058
STEPHEN BRANCHFLOWER, Director, Office of Victims' Rights (OVR),
Alaska State Legislature, turned to some of the issues raised
earlier in the discussion. Regarding the phrase, the search for
the truth, he suggested that the meaning of that phrase could be
debated at length because what the truth is to the defense is
oftentimes far different than what the truth is to [the
prosecution]. He elaborated:
I've heard judges ... [remark that] the criminal
justice machine does not provide a level playing
field. And I agree with that, but I have to qualify
that by saying that the reason it's not a level
playing field is [that] in many respects, the criminal
justice system favors the defendant against the state.
So it's not level; not because the state has the
advantage, ... [but] because the defense has the
advantage. Let me give you some examples. ... In
response to Representative Gara's inquiry about
whether or not we had ... different standards for
police and defendants, the answer is yes, of course we
do.
But that's not a bad thing; there are many areas in
the law that involve different standards. For
example, the defense starts out with ... a clean
slate, as the judge instructs the jury, and has the
presumption of innocence. That's something the state
has to overcome, so the scales of justice don't start
off equally balanced. The defendant has a Fifth
Amendment right not to be called upon, which includes
- and it has been interpreted to include - not to
require him to share the discovery. A few years ago,
the legislature promulgated a reciprocal discovery
statute in an effort to level the playing field, so
that if the defendant wanted discovery, he would have
to provide discovery to the state to avoid surprises.
And that was declared unconstitutional.
Number 0201
MR. BRANCHFLOWER continued:
So yes, there are different standards, but ... each
different standard, I believe, serves ... legitimate
public policy. Now, it's true that the defense has
the right to conduct their own investigation in a
criminal case, and this bill does not impair that.
But the truth of the matter is that the investigation
that the defense does is not anything like the
investigation the police do, because the police start
off at ground zero. They start out in the dark; they
don't know what the facts are, they don't know who the
responsible person is. By the time the defendant is
charged, after they determine who's responsible and
after the ... state gets involved, the public defender
has the benefit, through [the Alaska Rules of Criminal
Procedure] Rule 16, of all that discovery. They get
copies of the lab reports, ... all the police reports,
the statements, et cetera.
So when they go out to conduct an investigation, as
they did in [the Brooke] case, they are not starting
out from ground zero to find out what happened; they
are ... not necessarily trying to find, quote, "the
truth." ... [What] they're trying to do is sustain the
burden that they have, which is the burden of creating
reasonable doubt. It's not proving the case beyond a
reasonable doubt; it's creating doubt. And the way
they do that is by obtaining a statement, preferably
recorded, ... in order to impeach witnesses at trial
in an effort to undermine the state's case. And when
that happens, when mid-trial impeachment occurs,
witnesses lose credibility, and it makes it very
difficult for 12 jurors to agree beyond a reasonable
doubt. Oftentimes the state is surprised, and that
can prejudice the case.
MR. BRANCHFLOWER concluded:
Now, the bill that you have before you, all it does is
it requires parental input when the defendant or the
defense attorney wishes to obtain a recorded
statement. And that brings up to a level ... the
status quo regarding when the public defender or
defense investigator wishes to obtain a non-recorded
or written interview from a minor. It just extends
the same protection to the same class of ... people,
which are the minors. I think it also serves another
interest, which is, it helps parents and guardians
learn about what's going on in their children's lives,
and it helps them make smart decisions, it helps them
make decisions that hopefully avoid bad decisions that
will have lifelong lasting effect. So yes, we do have
different standards, but I think that there are
legitimate public policies that underlie those
different standards - on both sides. Thank you.
Number 0430
MS. TONDINI, turning to an issue raised by Ms. Wilson, explained
that AS 12.61.120 was amended because AS 12.61.125(2)(A) reads
as follows: "if the statement is taken as a recording, the
recording is taken in compliance with AS 12.61.120" and thus
refers back to AS 12.61.120. Therefore, AS 12.61.120 is amended
in HB 397. She further explained that the only reason the
addition was made in this section is because the procedures with
which the recording needs to comply are extensively specified in
AS 12.61.120. The desire was to ensure that those recording
procedures were also followed in cases dealing with sexual
offenses. "If what we're saying is parental consent is
inherently required because these minors aren't legally
competent to waive these rights, then we should make it clear in
the statutes and be uniform and make sure it applies both to
recorded and nonrecorded statements for sexual offenses and all
offenses," she clarified.
REPRESENTATIVE GARA acknowledged that he and Mr. Branchflower
disagree on this matter and remarked that the rules can't be
constructed under the assumption that all people who are charged
are guilty. He pointed out that sometimes when things are made
easier to convict guilty people, it also makes it easier to
convict innocent people. The aforementioned is the struggle
[before the legislature]. Representative Gara posed a situation
in which there is a defendant who is being wrongly charged with
a crime, who's being threatened that he/she will go to jail for
something that individual didn't do. Assuming the
aforementioned case, Representative Gara questioned why it's
being made easier for the prosecution to prove the case against
the innocent person than is being made for the defense team to
prove that the person is innocent. He emphasized that it seems
the rules should be consistent. Therefore, if the investigator
for one side [is required to] obtain parental consent, so should
the other side.
REPRESENTATIVE GARA suggested developing a role that protects
people in the greatest manner possible and perhaps to protect
victims and minors, parental consent should always be required.
He said that he didn't have a problem with the aforementioned,
although he did have a problem if one side is tilted such that
one side has an easier time proving their case than the other
side. He acknowledged that the playing field is tilted in favor
of one side in that the defendant starts with the presumption of
innocence, which he viewed as a good rule that he didn't want to
eliminate. However, he said he didn't believe it's a good rule
to tilt it here. If there is a possibility that a defense
investigator will act in an abusive manner toward a minor, then
wouldn't it also be possible that an investigator for the
prosecution will investigate the case in an abusive way toward a
minor as well. Shouldn't one be concerned about that as well,
he asked.
MR. BRANCHFLOWER related that most cases involving legally
innocent people are screened out, although he acknowledged that
from time to time juries do return not guilty verdicts. In the
cases with which Mr. Branchflower is familiar, he said those
verdicts represented a failure of proof rather than a not guilty
individual. Mr. Branchflower opined that it is neither workable
nor necessary to impose the same requirements on police with
regard to contacting parents because the police most often have
the same best interest of the witnesses, including minor
witnesses, as the parents do. The interests of the parents, the
victims, and the police are all in sync because all desire
holding the culpable person accountable. A police officer isn't
looking for inconsistent statements to impeach an individual on
trial. Therefore, society, through the police, has an interest
in sustaining the burden in order to hold offenders accountable.
Society's duty to protect victims is mandated in the
constitution, he highlighted. Mr. Branchflower pointed out that
the legislature has an obligation to protect its citizens from
undue influence, which is exactly what the statute does,
especially with regard to minors.
Number 0934
REPRESENTATIVE GRUENBERG pointed out that a [minor female] has
the right to privacy of her own body with respect to an
abortion, and therefore doesn't have to obtain parental consent.
However, [this legislation] won't let a minor individual talk to
the defense without parental consent. Therefore, he questioned
whether the witness has a constitutional right to talk to
whomever they want.
[HB 397 was held over.]
ADJOURNMENT
Number 0978
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:05 p.m.
| Document Name | Date/Time | Subjects |
|---|