Legislature(1995 - 1996)
02/10/1995 01:30 PM Senate JUD
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SENATE JUDICIARY COMMITTEE
February 10, 1995
1:30 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Lyda Green, Vice-Chairman
Senator Mike Miller
Senator Al Adams
Senator Johnny Ellis
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SENATE BILL NO. 10
"An Act revising Rule 16, Alaska Rules of Criminal Procedure,
relating to discovery and inspection in criminal proceedings, to
adopt the comparable federal rule."
PREVIOUS SENATE COMMITTEE ACTION
SB 10 - See Judiciary minutes dated 2/1/95.
See Judiciary minutes dated 2/6/95.
WITNESS REGISTER
Dean Guaneli
Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Explained changes in CSSB 10
ACTION NARRATIVE
TAPE 95-6, SIDE A
Number 001
SJUD - 2/10/95
SB 10 CRIMINAL DISCOVERY RULES
CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to
order at 1:40 p.m. Senators Taylor, Green, Miller and Adams were
present. SENATOR TAYLOR asked Dean Guaneli to testify on SB 10.
SENATOR ADAMS discussed the operating procedures of the committee.
He expressed concern that committee members did not have sufficient
time to review the latest committee substitute. He also noted a
Judicial opinion would be coming out next week on this issue, and
he wanted to see how that opinion interfaces with the committee
substitute. SENATOR TAYLOR noted the committee has checked with
the Court System at SENATOR ADAMS' request, and a special committee
of the Alaska Supreme Court will be reviewing this specific rule.
They will render a decision on February 17. SENATOR TAYLOR agreed
that the committee should wait until that decision is made prior to
taking any action on the bill. SENATOR TAYLOR stated he intended
to take testimony on the proposed CSSB 10 at this time to
familiarize members with the committee substitute.
Number 056
DEAN GUANELI, Assistant Attorney General, Department of Law,
reviewed the proposed CSSB 10 (Work Draft G). He explained in
civil litigation, the courts agree that fair and just results are
promoted by making certain information available to both the
defense and prosecution in advance of trial. This is not the
practice in criminal litigation. The defense has access to all of
the prosecution's case information, the prosecution knows little,
or nothing, about what the defense is going to present at trial.
This Rule of Court (16), which sets down rules of discovery in
criminal cases, was adopted by the Alaska Supreme Court under its
rulemaking authority, and was the result of the Scott case in 1974.
Other states have adopted rules of discovery which allow the
prosecution access to some of the defense's records. He noted
that in Alaska, jurors have been excused during trials because
he/she was familiar with a witness.
SENATOR ELLIS arrived at 1:45 p.m.
MR. GUANELI continued. The intent is not to force the defendant to
give a deposition, as in a civil case, as that would force the
defendant to give up his/her Fifth Amendment Right. However, when
the defense knows of alibi witnesses they intend to call at trial,
it would promote the interest of fair and just adjudications to
inform the prosecution in advance. Currently the defense is
required to inform the prosecution, prior to trial, if an alibi
defense is to be used, but the names of alibi witnesses do not have
to be disclosed. CSSB 10 would provide the prosecution with
advance notice of witnesses. In other states with different rules
of court, the judge can require advance disclosure, but judges in
Alaska do not have that authority under the Alaska Constitution.
The Alaska Supreme Court decided that forcing a defendant to
disclose the name of an alibi witness would be violating the
defendant's right against self-incrimination. To deal with some of
the unfairnesses in the system, CSSB 10 creates a hybrid system in
which the defendant could waive his/her rights under Scott vs.
State, by providing certain information to the prosecution, in
exchange for information provided by the prosecution which it is
not constitutionally obliged to provide. The Alaska Supreme Court
could overrule the Scott Decision and amend Rule 16 to accomplish
the same end, but he was unsure whether the Legislature could
require the Trial Courts to order something the Alaska Supreme
Court has denied. The Criminal Rules Committee to the Alaska
Supreme Court has not recommended changes supported by the Public
Defender Agency. He explained the Supreme Court's options are the
Criminal Rules Committee recommendation or the opt-in, opt-out
provision under consideration by the Legislature.
MR. GUANELI informed committee members the Supreme Court would be
meeting next Friday (February 17) to consider the bill, but he was
unaware of any firm deadline for making a decision.
Number 200
SENATOR TAYLOR noted the majority/minority reports on the Criminal
Rules Committee were distributed to members' offices for review.
He stated it was not his intention to hold the proposed CSSB 10 for
a lengthy amount of time until the Court rendered a position, but
to provide the opportunity for the Court to take action.
Number 216
MR. GUANELI stated some of the same provisions recommended by the
Criminal Rules Committee are included in the proposed CSSB 10. He
explained the opt-in, opt-out provision sets up a two-tiered system
for discovery. The first tier provides the defense a fair amount
of information, more than is provided in federal court. Without
opting in, the defense would be entitled to any exculpatory
information, or information that might reduce the punishment, or
material submitted to the Grand Jury. Grand Jury information is
not provided in the federal court system. In Alaska, anytime
anyone is charged with a felony offense, the case has to be
presented to the Grand Jury. Witness records would be available to
the defense, and they contain the names and testimony of primary
witnesses the state relied upon to obtain a Grand Jury indictment.
The defense would also have access to any evidence taken from a
defendant and prior witness statements after the witnesses testify.
If the defense wants more information, they would have to opt into
Tier Two, and they would have to provide information to the
prosecution. This method would eliminate surprise tactics during
trial.
MR. GUANELI discussed Subsection (h) on page 13 of the proposed
CSSB 10 (Jud) which deals with confidential records, and is a major
change to previous versions of SB 10. He explained there are a
number of records the prosecution cannot get access to, but
sometimes defense attornies want, including doctors' records,
psychiatrists' records, police personnel records, and victim
counselor records. Defense attornies often make motions to the
court requesting access to such information. Current court
procedure allows the judge to review the records incamera, and to
decide what the defense should receive. This provision sets
standards for that practice. Many judges routinely review
confidential records and turn them over to the defense without
analyzing whether they ought to. He has received a number of phone
calls from the Police Chief in Kodiak, Jack McDonald, who heads
the Alaska Police Standards Council. Mr. McDonald is concerned
about the practice involving police personnel records which contain
all kinds of information that may not be relevant to a particular
case. The defense attornies almost always have access to these
files without justification. The Alaska Police Standards Council
feels this practice is inappropriate. He has also received calls
from domestic violence advocates because judges routinely turn over
victim counselor records to the defense. Two years ago, the
Legislature passed a strongly worded privelege (AS 25.35) that says
victim counselors cannot be compelled to give testimony or records
in any proceeding. It hampers the ability of the victim service
organizations to provide confidential services to victims.
Number 298
SENATOR TAYLOR asked if those records end up in court when the
victim brings the case against someone for spousal abuse, or sexual
abuse of the children, etc. He asked if that would prevent a
person from getting evidence that could be used in their favor.
MR. GUANELI replied there are a number of exceptions to that
privelege that cover child protective proceedings, or any kind of
crime that may have been committed by the victim. If a civil suit
is going to be filed by a victim against a perpetrator, then that
information would come out. In other circumstances, there is a
strong privelege set out in statute, and it seems inappropriate to
routinely be giving over those records without some kind of set
process.
Number 315
SENATOR ADAMS stated the original version was unconstitutional. He
asked Mr. Guaneli if the most recent version (Work Draft G) is a
constitutional bill with the opt-in provisions. MR. GUANELI stated
he believed the original version adopted the federal rule of
evidence which he did not believe would be unconstitutional. The
federal rule of evidence is very limited, and with some exceptions,
disallows either side from getting anything. He felt CSSB 10 to be
a constitutional way to accomplish the result. A more preferable
way would be for the Alaska Supreme Court to do it independently.
Number 331
SENATOR TAYLOR asked if there was a requirement for the defense in
the O.J. Simpson case to produce a list of witnesses. MR. GUANELI
replied he did not know whether there is a rule in California
similar to this rule, but there was a pretrial order in that case.
SENATOR TAYLOR stated that would not occur in Alaska because the
defense is not obligated to provide that information.
Number 340
SENATOR ADAMS noted that he had hoped a judicial opinion on the
proposed CSSB 10 would have been provided, but the minority members
would not mind the adoption of the Work Draft G version of CSSB 10,
in order to use it as a working document.
SENATOR MILLER moved the adoption of the CSSB 10 (Jud) (Work Draft
G) in lieu of the original bill. There being no objection, so
moved.
SENATOR TAYLOR stated this bill will need a two-thirds vote to pass
the Legislature. He wants to ensure the bill is constitutional and
defensible before it leaves the committee. He plans to give the
Court System time to review the legislation, and if they do not
take independent action, the bill will be rescheduled in committee.
SENATOR TAYLOR adjourned the meeting at 2:05 p.m.
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