03/22/2004 08:04 AM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
March 22, 2004
8:04 a.m.
TAPE(S) 04-23, 24
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Hollis French
MEMBERS ABSENT
Senator Johnny Ellis
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 348(JUD)
"An Act relating to the rights of certain victims of crime to
receive information about the office of victims' rights and the
Violent Crimes Compensation Board."
MOVED CSHB 348(JUD) OUT OF COMMITTEE AND ADOPTED HOUSE
JUDICIARY LETTER OF INTENT
CS FOR HOUSE BILL NO. 349(JUD) am
"An Act amending Rule 412, Alaska Rules of Evidence."
HEARD AND HELD
CS FOR HOUSE BILL NO. 357(JUD)
"An Act relating to restitution; and providing for an effective
date."
MOVED SCS CSHB 357(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 397(JUD)
"An Act relating to defense contacts with and recordings of
statements of victims and witnesses of sexual offenses."
MOVED SCS CSHB 397(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 398(JUD) am
"An Act relating to domestic violence fatality review teams."
MOVED SCS CSHB 398(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 348
SHORT TITLE: NOTICE TO CRIME VICTIMS
SPONSOR(s): 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
01/26/04 (H) Heard & Held
01/26/04 (H) MINUTE(JUD)
01/30/04 (H) JUD AT 1:00 PM CAPITOL 120
01/30/04 (H) Moved CSHB 348(JUD) Out of Committee
01/30/04 (H) MINUTE(JUD)
02/12/04 (H) JUD RPT CS(JUD) NT 5DP
02/12/04 (H) DP: GARA, SAMUELS, ANDERSON,
02/12/04 (H) GRUENBERG, MCGUIRE
02/12/04 (H) LETTER OF INTENT WITH JUD REPORT
02/23/04 (H) TRANSMITTED TO (S)
02/23/04 (H) VERSION: CSHB 348(JUD)
02/25/04 (S) READ THE FIRST TIME - REFERRALS
02/25/04 (S) JUD
03/15/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/15/04 (S) -- Meeting Canceled --
03/22/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 349
SHORT TITLE: ILLEGALLY OBTAINED EVIDENCE/EVID RULE 412
SPONSOR(s): 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
01/26/04 (H) Heard & Held
01/26/04 (H) MINUTE(JUD)
02/02/04 (H) JUD AT 1:00 PM CAPITOL 120
02/02/04 (H) Scheduled But Not Heard
02/04/04 (H) JUD AT 1:00 PM CAPITOL 120
02/04/04 (H) -- Meeting Canceled --
02/09/04 (H) JUD AT 1:00 PM CAPITOL 120
02/09/04 (H) Moved CSHB 349(JUD) Out of Committee
02/09/04 (H) MINUTE(JUD)
02/18/04 (H) JUD RPT CS(JUD) 3DP 1NR
02/18/04 (H) DP: SAMUELS, HOLM, MCGUIRE; NR: GARA
03/03/04 (H) TRANSMITTED TO (S)
03/03/04 (H) VERSION: CSHB 349(JUD) AM
03/04/04 (S) READ THE FIRST TIME - REFERRALS
03/04/04 (S) JUD
03/15/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/15/04 (S) -- Meeting Canceled --
03/22/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 357
SHORT TITLE: RESTITUTION
SPONSOR(s): 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
01/26/04 (H) Heard & Held
01/26/04 (H) MINUTE(JUD)
01/30/04 (H) JUD AT 1:00 PM CAPITOL 120
01/30/04 (H) Moved CSHB 357(JUD) Out of Committee
01/30/04 (H) MINUTE(JUD)
02/04/04 (H) JUD AT 1:00 PM CAPITOL 120
02/04/04 (H) -- Meeting Canceled --
02/09/04 (H) JUD AT 1:00 PM CAPITOL 120
02/09/04 (H) Moved New CSHB 357(JUD) Out of
Committee
02/09/04 (H) MINUTE(JUD)
02/12/04 (H) JUD RPT CS(JUD) 3DP 1NR
02/12/04 (H) DP: SAMUELS, GARA, MCGUIRE; NR: HOLM
02/12/04 (H) FIN REFERRAL ADDED AFTER JUD
02/24/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519
02/24/04 (H) Moved CSHB 357(JUD) Out of Committee
02/24/04 (H) MINUTE(FIN)
02/26/04 (H) FIN RPT CS(JUD) 10DP
02/26/04 (H) DP: MEYER, HAWKER, STOLTZE, JOULE,
02/26/04 (H) CROFT, MOSES, FATE, FOSTER, HARRIS,
02/26/04 (H) WILLIAMS
03/01/04 (H) TRANSMITTED TO (S)
03/01/04 (H) VERSION: CSHB 357(JUD)
03/02/04 (S) READ THE FIRST TIME - REFERRALS
03/02/04 (S) JUD, FIN
03/15/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/15/04 (S) -- Meeting Canceled --
03/22/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 397
SHORT TITLE: DEFENSE CONTACTS WITH VICTIMS & WITNESSES
SPONSOR(s): REPRESENTATIVE(s) MCGUIRE
01/23/04 (H) READ THE FIRST TIME - REFERRALS
01/23/04 (H) JUD
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
01/30/04 (H) Heard & Held
01/30/04 (H) MINUTE(JUD)
02/04/04 (H) JUD AT 1:00 PM CAPITOL 120
02/04/04 (H) -- Meeting Canceled --
02/09/04 (H) JUD AT 1:00 PM CAPITOL 120
02/09/04 (H) Moved CSHB 397(JUD) Out of Committee
02/09/04 (H) MINUTE(JUD)
02/12/04 (H) JUD RPT CS(JUD) NT 3DP 2NR
02/12/04 (H) DP: SAMUELS, ANDERSON, MCGUIRE;
02/12/04 (H) NR: HOLM, GARA
02/23/04 (H) TRANSMITTED TO (S)
02/23/04 (H) VERSION: CSHB 397(JUD)
02/25/04 (S) READ THE FIRST TIME - REFERRALS
02/25/04 (S) JUD
03/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/05/04 (S) <Bill Hearing Postponed>
03/15/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/15/04 (S) -- Meeting Canceled --
03/22/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 398
SHORT TITLE: DOMESTIC VIOLENCE FATALITY REVIEW TEAM
SPONSOR(s): REPRESENTATIVE(s) DAHLSTROM
01/23/04 (H) READ THE FIRST TIME - REFERRALS
01/23/04 (H) JUD
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
01/28/04 (H) MINUTE(JUD)
01/30/04 (H) JUD AT 1:00 PM CAPITOL 120
01/30/04 (H) Moved CSHB 398(JUD) Out of Committee
01/30/04 (H) MINUTE(JUD)
02/12/04 (H) JUD RPT CS(JUD) 5DP
02/12/04 (H) DP: GARA, SAMUELS, ANDERSON, GRUENBERG,
02/12/04 (H) MCGUIRE
02/23/04 (H) TRANSMITTED TO (S)
02/23/04 (H) VERSION: CSHB 398(JUD) AM
02/25/04 (S) READ THE FIRST TIME - REFERRALS
02/25/04 (S) JUD
03/15/04 (S) JUD AT 8:00 AM BUTROVICH 205
03/15/04 (S) -- Meeting Canceled --
03/22/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Ms. Kelly Huber
Staff to Representative Stoltze
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 348 for the sponsor
Mr. Steve Branchflower
Office of Victims' Rights
1007 West 3rd Avenue, Suite 205
Anchorage, Alaska 99501-1936
POSITION STATEMENT: Supports HB 348
Lt. Al Storey
Division of Alaska State Troopers
Department of Public Safety
3700 East Tudor Road
Anchorage, Alaska 99507
POSITION STATEMENT: Supports HB 348
Representative Ralph Samuels
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of HB 349
Mr. Bob Shavelson
Homer, AK
POSITION STATEMENT: Concerned that HB 349 erodes Alaskans' civil
liberties
Mr. Barbara Brink
Office of Public Defender
Department of Administration
PO Box 110200
Juneau, AK 99811-0200
POSITION STATEMENT: Opposed to HB 349, HB 357, and HB 397
Ms. Anne Carpeneti
Assistant Attorney General
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions regarding the payment of
restitution (HB 357)
Ms. Sara Nielsen
Staff to Representative Samuels
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Answered questions about the payment of
restitution (HB 357)
Ms. Vanessa Tondini
Staff to Representative McGuire
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 397 for the sponsor
Representative Nancy Dahlstrom
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 398
ACTION NARRATIVE
TAPE 04-23, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:04 a.m. Senators Ogan, French
and Chair Seekins were present. The first order of business to
come before the committee was HB 348.
HB 348-NOTICE TO CRIME VICTIMS
MS. KELLY HUBER, staff to Representative Bill Stoltze, sponsor
of HB 348, told members that this legislation will require law
enforcement officials and the prosecuting attorney to notify a
victim, upon first contact, about the Office of Victim Rights'
(OVR) ability to assist the victim with the legal process. HB
348 only applies to victims of felonies or class A misdemeanors
that are domestic violence crimes against a person. The
notification process is simple; it requires that the office name
and contact information be provided, which could be on a
business card or in a brochure. HB 348 is a straightforward bill
that passed the House unanimously.
CHAIR SEEKINS questioned whether the victim would sign a receipt
or statement proving that he or she was notified.
[SENATOR THERRIAULT arrived.]
MS. HUBER said the bill contains no enforcement provision but
that this same process works well in similar situations. Law
enforcement officials and the prosecuting attorney are already
aware of the need to notify victims of the OVR. She added,
"We're putting in a law to make sure that they know they need to
do it but we believe that there's a good working relationship
right now and it will be done."
CHAIR SEEKINS said he asked because, in the world of private
business, when someone has a right to receive something, the
business makes sure a receipt is on file. He wanted it on the
record that the legislature is not expecting that an
acknowledgement be kept in a permanent file.
SENATOR FRENCH maintained that it is easy to define when a
police officer first contacts a victim, which is usually when an
arrest takes place, but it is harder to define a prosecuting
attorney's first contact. He asked Ms. Huber about the sponsor's
intention and whether the other body discussed defining initial
contact.
MS. HUBER replied:
...I think there was some of that thought given to it
but that is why it's a simple contact information -
you don't have to go into any great detail on the
office or you can hand them a brochure. It can be as
simple as that. We're not asking for them to explain
the group or to define what they can do for a victim.
It's just a quick passing of information and so...it
can be as simple as handing this to them and that's it
and I think that that's how they're trying to
alleviate your concerns, it's just by the very basic
information to be passed to the victim.
SENATOR FRENCH expressed concern that the prosecutor and victim
often play phone tag; so exchanging information is not as simple
as using e-mail or having face-to-face contact.
MS. HUBER agreed the bill could require person-to-person
contact.
SENATOR FRENCH asked for time to give that some thought. He
noted:
I think you guys are doing the right thing here.
You're just trying to say look, early in the process
you should give them that information but, from a
prosecuting attorney's standpoint, I guess I have two
concerns. One, I can see it actually falling off on a
paralegal and two, frequently, the first time you have
contact with a person, it may be something as simple
as a note or a phone...."
MS. HUBER pointed out the language in the bill actually reads,
"...and from the prosecuting attorney assigned to the defense."
Therefore, it does not require that the notification be made at
first contact.
CHAIR SEEKINS interjected that language elsewhere in the bill
speaks to the requirement being satisfied if notification is
given at first contact.
MS. HUBER indicated the law enforcement officer has probably
already given notification.
SENATOR FRENCH asked if the requirement is either/or, regarding
a law enforcement officer and prosecuting attorney.
CHAIR SEEKINS said it applies to both; therefore the language is
redundant in that the requirement would be satisfied if the
investigating officer and the prosecuting attorney each give the
crime victim a brochure.
MS. HUBER indicated the notification can be given verbally. She
felt the intent is to make sure the two people who are most
prevalent in the case at the time notify the victim.
CHAIR SEEKINS suggested replacing "prosecuting attorney" with
"prosecuting attorney's office" to address Senator French's
concern.
SENATOR FRENCH indicated that the responsibility typically falls
on the district attorney to provide notification but if a
paralegal provides the notification, that's fine.
CHAIR SEEKINS said the intent is to make sure the victim is
aware of the OVR. He then remarked, "I just worry there, in
terms of construction, a little concerned, that we're saying
they can do this orally but we're saying it's satisfied if they
receive two brochures. So, what else would it take to satisfy
it?"
MS. HUBER responded that the bill also says "or written" and the
written material could be on a business card if no brochure was
available. She agreed the purpose of the legislation is to make
sure the victim knows of the OVR so that the OVR can help the
victim through the process. She added, "We're just trying to
make sure that happens early on, and that's the key here is that
sometimes they learn about it but they're too far into the
process that it doesn't help them as much as it could have."
SENATOR FRENCH related:
Mr. Chairman, I think Ms. Huber is exactly right. This
is basically trying to give them notification. There
is no sort of remedy under the bill.... No one's going
to get dinged for not doing it or they may get dinged
in a personnel interview but you're not going to get
called up in front of a judge and so I think the
intent is clear behind the bill and it's probably
written as clearly as you can write it given the
vagaries of human conduct.
CHAIR SEEKINS took public testimony.
MR. STEVE BRANCHFLOWER, Director of the Office of Victims'
Rights, stated support for HB 348 and said Ms. Huber outlined
the bill well.
LT. AL STOREY, Alaska State Troopers, Department of Public
Safety (DPS), told members that DPS supports the bill as
written. DPS does not believe it will place an extra burden on
officers as they already provide information on domestic
violence and crimes compensation to victims that fall in those
categories. If HB 348 is enacted, the new brochures will contain
information about the Violent Crimes Compensation Act.
With no further participants, CHAIR SEEKINS closed public
testimony.
SENATOR THERRIAULT moved HB 348 from committee with individual
recommendations and its attached fiscal note.
CHAIR SEEKINS announced that without objection, the motion
carried.
CSHB 349(JUD)am-ILLEGALLY OBTAINED EVIDENCE/EVID RULE 412
REPRESENTATIVE RALPH SAMUELS, sponsor of HB 349, told members
that this measure will change Court Rule 412. He explained that
in a recent case in Anchorage, a woman was found stabbed in the
street. The police followed the trail of blood to a house, where
they found a man who later confessed to the killing on tape but
that statement was suppressed. When testifying, the killer "did
a 180 on his story" and claimed self-defense. The prosecutor,
judge, defense attorney, and court clerk knew the defendant
changed his story but could do nothing. The jury did not know
but convicted him on other evidence. HB 349 would do nothing to
change what evidence is suppressed. However, if a defendant
chooses to get on the witness stand and change his or her story
substantially, the judge can rule that the evidence can come
back in and the jury would decide which story it believes.
REPRESENTATIVE SAMUELS said HB 349 has some sideboards, "to make
sure that we didn't get anything in court that we did not want.
If the judge can rule that if it was coerced in any way, the
evidence stays out in all circumstances, whether he changes his
story or not." In addition, any non-voluntary evidence or a
statement that should have been recorded but was not would stay
out. HB 349 is his attempt to adopt the federal standard and the
standard used in 30 other states. He noted that only 3 states
use the same standard as Alaska. He read the following statement
issued by the U.S. Supreme Court:
The shield provided by Miranda cannot be perverted
into a license to use perjury by a way of defense free
from the risk of confrontation with prior inconsistent
utterances.
He said in reality, HB 349 will not affect very many people but
it is very important for those it does affect. He noted he heard
from the jury foreman in the Wallner case when he read the press
release on HB 349. The jury foreman said the entire jury was
furious when they found out that everyone else in the courtroom
knew Mr. Wallner had confessed to the murder. He asked members
to put themselves in the shoes of a victim of a crime that knew
a person had confessed but changed his story and knew the jury
could not be told of the confession. He said HB 349 adopts a
more moderate, balanced standard.
SENATOR THERRIAULT asked why the confession was suppressed in
the Wallner case.
REPRESENTATIVE SAMUELS thought it was because Mr. Wallner told
the police he might need a lawyer when they arrived but he did
not insist. However, once he mentioned a lawyer, the police
probably should have waited until he got one.
SENATOR THERRIAULT asked if Mr. Wallner could have been charged
with perjury after the trial.
REPRESENTATIVE SAMUELS said the evidence could be brought in for
a perjury trial. He noted that Mr. Wallner's sentence [for
murder] was 80 years; the maximum sentence for perjury is 6
years.
SENATOR FRENCH asked Representative Samuels to speak to the
second portion of the bill, which addresses other evidence
illegally obtained.
REPRESENTATIVE SAMUELS replied:
...the example would be in the Wallner case, had the
knife not been stuck in her, had it been stuck
somewhere else and Mr. Wallner had said yea, I left
the knife in the woodpile or on the kitchen table or
wherever he hid the knife, through the poisonous tree,
once a statement is out anything that you found
because of the statement is out and this would say if
you change your story, if the statement's back in,
then the knife is back in. The evidence is also back
in. So you unpoison the tree - for the purposes of the
impeachment only.
SENATOR FRENCH asked if that would go beyond the Miranda
doctrine into Fourth Amendment issues so that evidence taken in
violation of the Fourth Amendment could be used to impeach.
REPRESENTATIVE SAMUELS replied, "The way we've got it set up
right now...only the statement to impeach what he said on the
stand, any evidence, I mean if he changes his story, what's
going to be allowed in is going to be very narrow to impeach
what he said to change his story."
SENATOR FRENCH asked if that pertains to the defendant only or
to any witness.
REPRESENTATIVE SAMUELS answered, "Just the defendant...co-
defendant and former defendant." He said in a drug trial with
four defendants, if one defendant gave a statement, you would
not want one person to get off or to get the whole group off. He
said, in other words, if he made a statement and his evidence
was thrown out, he could not get up and change his story in
court, which could taint the jury on all four defendants.
SENATOR FRENCH asked, "So I'm wondering if the gun is seized in
violation of the Fourth Amendment and a lying buddy gets on the
stand and says that gun wasn't there that night, that gun was in
my truck, he's not a defendant, he's just a lying buddy, an
alibi witness - whether this bill covers that situation?"
REPRESENTATIVE SAMUELS deferred to Mr. Branchflower.
MR. STEVE BRANCHFLOWER, Director of the Office of Victims'
Rights, said this bill could not be used to impeach the lying
buddy because the bill only focuses on the defendant, the co-
defendant or former defendant.
CHAIR SEEKINS assumed that would carry across if a police
officer committed perjury as well.
MR. BRANCHFLOWER said that is correct.
8:30 a.m.
CHAIR SEEKINS took public testimony.
MR. BOB SHAVELSON, a resident of Homer, said he is concerned
that HB 349 will erode Alaskans' civil liberties. Although he
believes that protecting victims' rights is a laudable goal, he
is concerned that emotion is driving policy. He pointed out the
case referred to was a very damning indictment of the individual
involved. He asked the committee to think carefully about
intruding further on Alaskans' personal liberties.
MR. BRANCHFLOWER stated support for HB 349 and said it will not
change Alaska laws regarding confessions or Miranda
requirements. Those laws are constitutionally based and derived
from the U.S. Supreme Court. HB 349 will apply narrowly to
circumstances where the defendant has given a statement that is
later suppressed by a judge, where the statement was supported
and otherwise voluntary, [and under several other circumstances
that were inaudible due to poor transmission].
SENATOR FRENCH asked Mr. Branchflower to imagine a case where a
defendant's confession to police was suppressed simply because
of a Miranda violation, and questioned whether it would be
possible for that person to testify at all without being
impeached.
MR. BRANCHFLOWER said yes, because what triggers application of
HB 349 is whether the testimony was contrary and inconsistent to
the suppressed statement. It would not apply if a person
testified consistently because the purpose of the bill is to
impeach.
SENATOR FRENCH queried, "And what if the defendant simply
avoided that area of questioning? Can you see a situation where
he's more or less, on cross-examination, sort of drawn into that
area or otherwise sort of somehow - I don't want to say trapped,
but somehow baited or somehow forced to focus on the areas in
question. Do you think there'd be a prior ruling maybe from the
judge that that area would be precluded or what do you think?"
MR. BRANCHFLOWER said he would expect, if there is a question
along those lines, the defense attorney to take it up outside
the presence of the jury and seek guidance from the court in
terms of the parameter of the anticipated cross-examination. He
suspects the defense would make it clear that he does not plan
to go into the prohibited areas. Under Alaska court rules, the
scope of cross-examination must be limited to the scope of
direct [examination]. He felt most prosecutors would not want to
venture the risk of a reversal but the judge would ultimately
make the decision in light of the facts presented.
CHAIR SEEKINS asked what constitutes a statement.
MR. BRANCHFLOWER explained a statement would be an utterance
from a defendant and, in the great majority of cases, it is the
oral statement made to police. Although rare, a statement could
be a written account that could be suppressed.
CHAIR SEEKINS asked about the Alaska State Troopers' policy
regarding recording contacts with individuals.
LT. AL STOREY, Alaska State Troopers, explained that if recorded
capability exists, the Troopers record the interview. He pointed
out that complies with case law. The person simply needs to know
that they are speaking to police officers; they do not need to
know the interview is being recorded or that the recording is
admissible. Most troopers carry a tape recorder with them to
record conversations with suspects.
CHAIR SEEKINS asked Mr. Branchflower if the tape recording of a
suspect who was not advised of his Miranda rights could be used
to impeach a later statement made under oath.
MR. BRANCHFLOWER replied:
It could be if the court determines before the fact
that the statement was 'unlawfully seized' or
illegally seized. Circumstances that dictate when a
statement has to be recorded [are] established by our
cases here in Alaska. Essentially our Supreme Court
said that police must record a statement in its
entirety from beginning to end, including the reading
of the Miranda rights and the waiver. If the interview
takes place under two circumstances - one, if the
defendant is in custody or the suspect is in custody,
and two, if that interview takes place at what is
called a place of detention. Typically that means a
police station. It can mean a police car. So those are
the requirements and if a statement is taken in
violation of those two requirements, the defense
attorney may ask if the court may suppress the
statement. And if the defendant takes the stand, why
the application of the bill will come into play.
CHAIR SEEKINS responded:
I'm wondering if, by the use of electronic recording -
a statement is an utterance, it's done at the scene of
the crime, it's not done while the person is in
detention of any sort, and their utterance, you know
yea, I did it, whatever, is made on tape recording
prior to the reading of any rights, and then if they
take the stand and say they did not do it at a later
date, then this pre-Miranda tape recording prior to
detention then would be admissible if the judge
allowed it in, if I'm correct, and could set up a
whole new procedure for interviewing suspects,
interview them prior to taking them into detention as
much as possible to try to get a tape recorded
statement, which could be later used to impeach. I'm
just wondering if that wouldn't be an easier way for a
law enforcement officer and for the state to be able
to - I'm not saying that that would be necessarily -
wouldn't be bad to get the guy off the street if he
was a murderer but what are we doing in the area of
rights?
MR. BRANCHFLOWER said the law regarding the taking of statements
is well settled in Alaska. What Chair Seekins is referring to is
a body of law that deals with "on-the-scene" questioning.
Essentially, no requirement exists under Alaska, tribal or
federal law to inform a person on the scene of his or her
Miranda rights because the police are still trying to focus the
investigation and determine who was responsible. However, once
the police have a suspect in custody, the police are required to
inform the suspect of his or her Miranda rights. If the Miranda
rights are read at a place of detachment, the recording
requirement applies. He repeated that it is police practice to
go to a scene and have a tape recorder turned on to capture any
admissions that might be made. Those recordings are routinely
allowed into evidence.
SENATOR FRENCH affirmed that Mr. Branchflower's recount of how
police investigations work is accurate.
CHAIR SEEKINS commented, "So, if I'm correct then, if a police
officer walks up to someone and says what's going on here and
somebody confesses, they're dead."
MR. BRANCHFLOWER explained that the definitions of a confession
and an admission are well established. What Chair Seekins
described would be an admission. That statement would be
admissible. He noted that typically what happens is that the
defense attorneys do not seek to suppress those statements. If
the defendant says he did it, the defendant will be arrested
within a short time and taken to the police station, where the
interview will take place. That is where most of the benefits of
HB 349 will come into play if a defendant later disputes on the
stand what was said on the tape recording.
REPRESENTATIVE SAMUELS pointed out that less than 2 percent of
cases actually go to trial. Of those, HB 349 would only take
effect where a Miranda violation occurred and the defendant took
the stand at trial and changed his or her story. HB 349 will not
make a sweeping change to the system.
SENATOR THERRIAULT recapped that in those cases, the defendant
does not have to take the stand but if the defendant does, he or
she cannot lie.
CHAIR SEEKINS said that although he agrees with the concept of
HB 349, he imagines the average person does not know that a
statement made prior to being detained is admissible in court.
He wanted to hold the previous discussion to indicate that the
committee is not trying to step on anyone's Miranda rights.
MS. BARBARA BRINK, Alaska Public Defender's Agency, presented
the following points as "food for thought." First, the purpose
of Miranda rights is to protect an individual's constitutional
right to not incriminate oneself and the right to counsel. She
expressed concern about dismissing something as simple as a
Miranda violation because that denigrates the importance of the
Miranda right. The U.S. Supreme Court issued the Miranda ruling
because it found that subjecting a person to custodial
interrogation is inherently coercive, and therefore should
require that a person be informed of their right to remain
silent and to have counsel. Any request or mention of the right
to counsel is to be scrupulously honored. That did not happen in
the Wallner case. Those rules are not complicated and difficult
for police to follow. She believes if the police cannot follow
those simple rules, they should not be entitled to use the
evidence obtained. The point of suppressing statements is to
encourage police to act lawfully. The Fourth Amendment is
designed to protect one's right to privacy and protect people in
their own homes. Under [HB 349], she does not see why the police
would bother to uphold Miranda rights or the Fourth Amendment.
They could feel free to ignore those requirements, especially
under paragraph 2, in which any evidence illegally obtained
could be admitted to impeach a criminal defendant.
MS. BRINK said no one condones perjury on the part of any
witness, but she is more fearful of allowing the government to
ignore all of one's constitutional rights in its desire to
convict someone. She said she also appreciates the jury foreman
being angry about not being given all of the available
information in a case, but noted the rules of evidence in any
trial often prevent both sides from introducing evidence they
would like the jury to know. The judge's purpose is to limit the
evidence to that which is relevant, non-prejudicial, and lawful.
HB 349 removes the lawful requirement. She shares Mr.
Shavelson's concern that one case is driving Alaska criminal
justice policy, especially when those changes are unnecessary.
She pointed out in the [Wallner] case that brought this
situation to the legislature's attention, the defendant was
convicted without the use of illegally obtained evidence. She
cautioned the legislature against making sweeping changes in
policy and sending the message to the police that unlawfully
obtained evidence is acceptable.
CHAIR SEEKINS said he was not aware that state law could
override Miranda.
MS. BRINK said HB 349 will allow the use of statements seized in
violation of Miranda.
CHAIR SEEKINS asked if those Miranda rights will still be in
effect.
MS. BRINK said the courts have enforced Miranda by excluding
illegally seized evidence. The right is still in effect: the
person has a right to be informed and have an attorney but what
is being changed is the consequence for the police. If the
police have no consequences, they should tell suspects of their
right to an attorney but if they do not, there are no
consequences.
CHAIR SEEKINS noted that HB 349 will align Alaska law with
federal law. He questioned whether Ms. Brink is saying the
federal law violates the principle of Miranda.
MS. BRINK said the rules have little meaning when they are not
enforced and a right with no meaning has no remedy. She
acknowledged that in the federal system, one can use illegally
obtained evidence in these situations but she believes Alaska
should have higher protections for its citizens.
REPRESENTATIVE SAMUELS maintained that the U.S. Supreme Court
said the shield provided cannot be perverted from a license to
use perjury in a way from defense. Only three states do it the
way Alaska does.
SENATOR FRENCH asked Ms. Brink how many successful Miranda
motions the public defender's agency brings every year.
MS. BRINK said her agency does not have the ability to keep
those statistics but Alaska leads the nation in requiring law
enforcement officers to tape record the advisement of Miranda,
which caused a decrease in litigating motions on Miranda. From
speaking with her colleagues elsewhere in the country, those
motions are very time consuming and are engaged in on a daily
basis. That does not happen in Alaska because a clear record is
available.
With no further participants, CHAIR SEEKINS closed public
testimony and asked for discussion by the members.
TAPE 04-23, SIDE B
SENATOR OGAN asked that HB 349 be held in committee until the
next meeting because he feels that any legislation that pushes
the envelope of the Bill of Rights deserves introspection.
CHAIR SEEKINS asked what vote is required on this bill.
REPRESENTATIVE SAMUELS replied that it requires a two-thirds
vote of both bodies.
SENATOR FRENCH shared Senator Ogan's caution. He said he is
generally supportive of HB 349 but would like more time to think
over several of the points made, especially the point made by
Ms. Brink about the disincentive it will create to provide
Miranda rights. He said his sense is that the motives of the
police will not change because they will still be much better
off with a lawfully obtained confession.
CHAIR SEEKINS announced that he would hold HB 349 in committee.
REPRESENTATIVE SAMUELS asked members, as they mull the bill
over, to consider it from the standpoint of the victim and the
real life implications.
SENATOR FRENCH requested a copy of the federal analysis of this
rule from Representative Samuels, who agreed to provide it.
9:00 a.m.
HB 348-NOTICE TO CRIME VICTIMS
CHAIR SEEKINS notified members that a letter of intent was
attached to HB 348 and called a brief recess to give members a
chance to review it.
Upon reconvening, CHAIR SEEKINS specified that the letter of
intent was from the Chair of the House Judiciary Committee. He
read from that letter:
Section 2 of this act requires a victim's advocate to
include within brochures or other written material to
be given to certain crime victims information about
the Violent Crimes Compensation Board. It's the intent
of the House Judiciary Committee that this requirement
applies only to brochures or other written material
printed after the effective date of this act. The
victim's advocate may continue to supply brochures or
other material printed before the effective date of
this act until those brochures or materials are
exhausted.
CHAIR SEEKINS asked for a motion to include the letter of intent
as part of the committee's record.
SENATOR THERRIAULT moved that the Senate Judiciary Committee
adopt and recommend for consideration on the Senate floor the
House letter of intent.
CHAIR SEEKINS noted that without objection, the motion carried.
HB 357-RESTITUTION
REPRESENTATIVE RALPH SAMUELS, sponsor of HB 357, told members
that HB 357 is a conforming statute to art. 1, sec. 24, of the
Alaska Constitution. In 1994, the legislature approved and put
on the ballot a victims' right amendment to the constitution,
which was overwhelmingly approved by the voters. One of the
rights was the right to restitution from the accused. HB 357
mandates the court to order restitution and allows the court to
set up a payment schedule based on the offender's ability to
pay. The bill contains one exception to the requirement, and
that is at the express request of the victim. During the House
committee process, discussion centered around the fact that
sometimes victims of violent crimes never want to deal with
those crimes again and decline restitution. He noted the
Department of Law has drafted an amendment that deals with the
technical aspects of collection and disbursement of restitution.
CHAIR SEEKINS noted that Version Q was before the committee. He
indicated that the bill says the court may not reduce
restitution but can change the payment schedule and asked if it
could require an offender to pay $1 per year until paid in full.
SENATOR FRENCH thought that would have the effect of reducing
the award if the offender was only on probation for 5 years and
the restitution award was $500. He questioned what happens at
the end of the probation period if a large portion of the
restitution is unpaid.
REPRESENTATIVE SAMUELS explained that the bill does not change
what occurs now. He added:
If something happens now, they're still on the hook
for it. What the hammer is now - I couldn't talk to
the very specifics of that. As we went through the
process researching this bill, the advice always given
was take the time to go file a civil suit as the
victim. We tried to get away from that. We're trying
to make it - you know, here's the guy that had his
windshield smashed in, he wants to get his money back
without having to hire a lawyer. That was the point of
doing this. The ins and outs and the technical aspects
- we didn't change anything so whatever it is now, we
didn't touch it.
SENATOR FRENCH said that is a very frustrating area of the law
for the district attorneys, the victims, and even the defense
attorneys because a criminal system gets caught up in what is,
to a large degree, a civil process. He said he is glad
Representative Samuels has introduced this legislation because
this is a troublesome area of law.
REPRESENTATIVE SAMUELS said at one time he tried to address
problems with juveniles and adults in civil court in the bill:
And we tried to tie it saying that automatically a
civil suit would be filed and that didn't work either
and as it grew and we couldn't manage it anymore, it
got cut back to where we didn't change any other - we
went from, on page 1 line 4, it said the court may,
originally, and we changed it to shall and other than
that we didn't change a lot of the substance of the
way that the system works now so - you will order the
restitution however long it takes the person - is the
way we're headed. We tried to do more than that and
make it easier but we seemed to be making it more
difficult as we went down that road. I agree with
Senator French, it's not easy.
CHAIR SEEKINS said as he reads it, the court will not be able to
consider the defendant's ability to pay restitution and it must
order full restitution. He asked if the hammer is that it must
be paid before the offender is off probation.
MS. ANNE CARPENETI, Assistant Attorney General, Criminal
Division, Department of Law (DOL), said that restitution, like
fines, is considered to be a civil matter that the victim can
pursue after the period of probation so it can go beyond the
period of probation.
CHAIR SEEKINS said he was questioning if, at the time the
restitution is ordered, a civil judgment is placed against the
defendant in favor of the person to whom restitution is due.
MS. CARPENETI replied, "Generally the law provides, I think, in
the area of restitution, like fines, that it's a civil judgment
that the person can pursue." She said that maybe three or four
years ago, the legislature gave to the DOL the authority to
collect for victims. The department can do bank sweeps and
executions against the permanent fund dividend.
CHAIR SEEKINS asked at what point that free collection service
ends.
MS. CARPENETI believed the service continues until restitution
is complete.
SENATOR OGAN expressed concern about taking away all discretion
from the judge to consider the circumstances when ordering
restitution.
CHAIR SEEKINS said he reads Sec. 12.55.051, Enforcement of Fines
and Restitution, to mean the court can order restitution and
non-payment can be used to cancel probation. After probation, or
even if probation is not part of the sentence, the offender
could be in contempt of court for non-payment of restitution.
However, he believes the court has leeway if the offender can
show he or she is unable to pay but is making good faith efforts
and the court could even restructure the payment schedule.
Therefore, the court would have some discretion to address the
situation Senator Ogan described. He added that a defendant can
actually request a hearing regarding inability to pay. He
imagined the court would then examine whether the repayment
schedule is bringing harm to other innocent people, such as the
offender's family.
REPRESENTATIVE SAMUELS agreed with Chair Seekins and said a
judge could postpone restitution from an 18 year old who cannot
pay until that person turns 25. He repeated that restitution is
required by the Constitution.
9:15 a.m.
SENATOR THERRIAULT referred to page 2, line 12, and asked why
the reference to subsection (f) is being deleted.
MS. CARPENETI said it removes the provision that allows the
court to consider the level of fines and reduce them under
certain circumstances. She said she does not see this bill as
changing the way the court determines the amount of restitution.
She said she believes the court does take other factors into
consideration, but once a judge arrives at an amount, it cannot
be reduced, but the payment schedule can be changed.
SENATOR THERRIAULT asked for descriptions of the two subsections
being deleted on page 3, section 7.
MS. CARPENETI said that AS 12.55.045(e) is a provision that
specifically addresses restitution in vehicle theft cases, which
will no longer be necessary since HB 349 orders restitution in
all cases. The removal of AS 12.55.045(f) is conforming to the
rest of the provision, which says restitution must be considered
no matter what the length of sentence.
SENATOR THERRIAULT moved to adopt Amendment 1, which reads as
follows.
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: CSHB 357(JUD)
Page 2, lines 16-19:
Delete all material and insert the following:
"(n) Notwithstanding another provision of law, the
court shall accept (1) payments of restitution from a defendant
at any time; and (2) prepayments of restitution or payments in
anticipation of an order of restitution. If the recipient has
elected to have the Department of Law collect the judgment of
restitution under AS 12.55.051(g), the court shall forward all
payments of restitution to the Department of Law within five
days of the court's acceptance."
Page 3, lines 3-7:
Delete all material and insert the following:
"(f) Notwithstanding another provision of law, the
court shall accept (1) payments of restitution from a defendant
at any time; and (2) prepayments of restitution or payments in
anticipation of an order of restitution. If the recipient has
elected to have the Department of Law collect the judgment of
restitution under AS 12.55.051(g), the court shall forward all
payments of restitution to the Department of Law within five
days of the court's acceptance.
AN UNIDENTIFIED MEMBER objected.
MS. CARPENETI explained when a victim asks DOL to collect on his
or her behalf, a procedure is set up that requires DOL to keep
track of what has been paid to the victim. Amendment 1 makes
clear that even though DOL may be collecting on a judgment, a
judge or a clerk of court may accept payment on that order of
restitution because, in some circumstances, the defendant may
pay at sentencing. The court needs to be able to take possession
of the money right then. If the victim has chosen DOL to
collect, that money must then go to the DOL for accounting
purposes. She said Amendment 1 is primarily a housekeeping
measure.
CHAIR SEEKINS announced that with no further objection,
Amendment 1 was adopted. He then took public testimony.
MS. BARBARA BRINK, Alaska Public Defender's Agency, said she
does not object to efforts to collect restitution on behalf of
crime victims, but she is not convinced that removing all
discretion from the judge is the best way to do that. She said
the district attorneys do a very good job at making and
documenting requests for restitution and providing evidence of
what is owed. Frequently, defense attorneys and their clients
agree, upon receiving that documentation, it should be a part of
the court order. Under HB 357, the court will be forced to order
restitution in cases where the victim is not involved at all and
the evidence of the cost of restitution may be less than
reliable. For example, a police officer is not likely to spend a
lot of time estimating the cost of damage in a simple case of a
person charged with reckless driving who engaged in a fender
bender in a parking lot. It is likely the victim's insurance
company will pay to repair the damages. Then, the court order
will require restitution on the part of the defendant so the
crime victim will get a windfall. Also, the police officer's
estimate could be grossly wrong. She said the current procedure
for ordering restitution is simple, less time consuming, and
works well. She suggested that if restitution must be ordered in
every single case, there will be many more situations in which
defendants cannot pay the full amount before probation is over.
Therefore, instead of doing a thoughtful fact finding process at
the beginning of a person's sentence, hearings will have to be
held years later at the end of the defendant's probationary
sentence.
SENATOR THERRIAULT said the language at the beginning of the
bill says, "The court shall, when presented with evidence...."
He asked if that satisfies Ms. Brink's concerns.
MS. BRINK replied the rules of evidence don't apply at a
sentencing hearing so the question of whether or not the
evidence is reliable would be "iffy." She maintained that her
point was if the victim does not work with the prosecutor to
document the loss, the court will be relying on a very brief
investigation.
SENATOR THERRIAULT asked if putting a modifier on that phrase
would alleviate Ms. Brink's concern. He suggested specifying
that the evidence must be documented or substantiated.
MS. BRINK said it would.
SENATOR OGAN suggested using the word "reasonable."
CHAIR SEEKINS recounted a personal situation in which he had to
provide the court with the cost of repairs to his vehicle to
prove clear and convincing evidence of the loss. He said the
court is aware of what constitutes evidence.
REPRESENTATIVE SAMUELS pointed out the phrase, "when presented
with evidence," was added by the House Judiciary Committee. He
was told by DOL afterward that it was redundant because a court
would never order restitution without a receipt.
MS. SARA NIELSEN, staff to Representative Samuels, added that
restitution is ordered after a person is convicted of a crime so
the "fender-bender" argument would not hold.
SENATOR FRENCH noted that the "fender-bender" could have been
caused by a person who was driving recklessly and added, "...now
the issue is what do you pay to fix the car and her example is a
rooky cop says looks like $2,000 to me and maybe it's 5 - maybe
it's 1 - and whether or not the rooky cop's estimation in the
field on a busy day is sufficient to justify the restitution
award that could eventually lead to the revocation of a person's
probation if it's not satisfied."
MS. NIELSEN responded that according to DOL, the evidence must
be documented.
MR. STEVE BRANCHFLOWER, Director of the Office of Victims'
Rights, stated support for HB 357, particularly the provision
that allows the court to take into account the offender's
present ability to pay. At present, once an offender is
sentenced to jail time, the court reduces restitution because
that person's earning potential during the incarceration period
is nominal. That reduction in restitution does not allow for a
potential windfall or the possibility that the offender will get
a job after being released. To the extent the restitution awards
are reduced, that is inconsistent with a victim's right under
art. 1, sec. 24, to get full restitution. As previously
mentioned, the court has jurisdiction and discretion under AS
12.55.051 to make allowances where a defendant can show good
faith efforts to pay restitution but is no longer able to. He
agrees that adding a modifier to the word "evidence" on page l,
line 4, would be redundant because the courts never order
restitution without evidence of the cost.
CHAIR SEEKINS announced that with no further participants,
public testimony was closed.
SENATOR OGAN moved to add the word "reasonable" before the word
"evidence" on page 1, line 10, and objected for the purpose of
discussion [Amendment 1].
SENATOR THERRIAULT noted that previous testifiers have pointed
out that language is unnecessary. He suggested deleting it
instead of modifying it.
SENATOR FRENCH asked the sponsor if his desire is to have
restitution ordered in every single case no matter what the
defendant's ability to pay.
REPRESENTATIVE SAMUELS replied:
To me, you want to get away from the defendant's
current ability to pay. As far as the language being
in or out, what they said - it wasn't necessary but it
certainly didn't hurt anything. So, I'll be perfectly
honest, this is keeping peace in the family to keep
the language in there. I'll be perfectly honest, it
didn't hurt anything. And to add reasonable, and if I
could, the amendment should also include line 4 also.
There's two places where there's....
CHAIR SEEKINS asked if the amendment shortened the debate in the
[House Judiciary Committee].
REPRESENTATIVE SAMUELS said it did.
SENATOR OGAN amended Amendment 1 to add "reasonable" to line 4
as well.
REPRESENTATIVE SAMUELS expressed concern that adding the word
"reasonable" will give the lawyers one more thing to argue about
and that the issue will become who is the better attorney rather
than making sure the victim gets paid.
SENATOR OGAN suggested it might keep the victim from
overcharging. He said he has no problem mandating that people
pay restitution but is concerned that if the bill takes away the
judge's discretion to decide whether to order restitution, it
should provide for discretion regarding the amount.
SENATOR THERRIAULT commented that the word "reasonable" will
apply to the evidence, not the price.
CHAIR SEEKINS noted that is why he suggested "clear and
convincing."
SENATOR FRENCH felt that standard would be too high.
SENATOR THERRIAULT remarked, "I think we're just asking what
kind of evidence, what kind of documentation, what you need to
show the court that you have actually suffered an out-of-pocket
expense and again, it's not whether you went to the lowest price
windshield shop in town, it's what you have to show that you've
actually forked money out."
CHAIR SEEKINS said if he had an accident, his insurance company
would require him to get three estimates and to use the lowest
estimate. If someone else hit him, he could get his vehicle
repaired wherever he wanted to as a claimant as long as the
repair cost was within reason. The victim has the right to not
have to go to the cheapest repair shop to get his or her car
fixed.
SENATOR FRENCH questioned whether inserting "a preponderance of
the" [evidence] would satisfy members' concerns. It would
complicate the matter in that it inserts a civil standard into a
criminal proceeding and it puts some burden on the victim to
bring forward evidence.
CHAIR SEEKINS said that would result in a civil judgment.
SENATOR FRENCH said it is that way right now but part of the
idea [behind HB 357] is to not force the victim to go through
the hoops of the civil system and instead to use the power of
the criminal court to get restitution.
REPRESENTATIVE SAMUELS offered, "...on a preponderance - it's
really a 50 percent, 51 percent, that's not a monetary amount.
It's kind of an apples and oranges to me. A suggestion I just
got from the Department of Law was maybe, perhaps, credible
evidence...."
SENATOR THERRIAULT agreed "credible" was a good suggestion
because it would apply to a valid receipt.
SENATOR THERRIAULT moved to amend Amendment 1 to change the word
"reasonable" to the word "credible."
CHAIR SEEKINS announced that without objection, Amendment 1 was
amended.
CHAIR SEEKINS asked if there was further discussion on Amendment
1 [to insert the word "credible" prior to the word "evidence" on
lines 4 and 10 on page 1]. There being none, Amendment 1 as
amended was adopted.
SENATOR OGAN moved SCS CSHB 357(JUD) and its attached fiscal
notes from committee with individual recommendations.
CHAIR SEEKINS announced that without objection, the motion
carried.
HB 397-DEFENSE CONTACTS WITH VICTIMS & WITNESSES
MS. VANESSA TONDINI, staff to Representative Lesil McGuire,
sponsor of HB 397, explained that the package of victims' rights
legislation, of which HB 397 is part, rests on the premise that
victims and witnesses to violent crimes are unwillingly thrust
into the legal system. They did not ask to be involved in a
legal case and are placed at risk of harassment.
TAPE 04-24, SIDE A
MS. TONDINI explained that the potential harms increase when the
victim or witness is a minor and when the crime is a sexual
offense. HB 397 is also known as the Brooke Act, in honor of one
of Representative McGuire's constituents, who was the victim of
a rape. Her parents were unaware that a defense investigator had
contacted her for an interview, which she gave without the
guidance of her parents or an attorney.
MS. TONDINI informed members that HB 397 requires criminal
defense attorneys and investigators to first obtain the consent
of a minor's parent or guardian prior to conducting a tape
recorded interview with a minor sexual assault victim or
witness. The current law states when a defense attorney or
investigator speaks to a minor victim or witness and the
interview is not recorded, written authorization must first be
obtained from a parent or guardian. However, no such consent is
required if an interview is recorded. This loophole leaves
juveniles and parents in the dark. Current law embodies an
important provision that does not allow a defendant who is a
parent or guardian of a minor sexual assault victim or witness
to provide the authorization required by HB 397. She added that
statements obtained from a victim or witness in violation of
this statute are presumed inadmissible. To overcome the
presumption of inadmissibility, the defendant is required to
prove the statement is reliable, similar evidence is unavailable
from another source, and that failure to reduce the statement
would substantially undermine the reliability of the fact-
finding process and result in manifest injustice.
SENATOR THERRIAULT asked why Section 1 is necessary.
MS. TONDINI said it provides a short title of the act as a
courtesy to a constituent of Representative McGuire.
SENATOR THERRIAULT said although he understands a particular
case can trigger a new section of law, the legislature should be
careful about inserting people's names throughout the statutes
for no compelling reason.
SENATOR OGAN concurred with Senator Therriault.
9:50 a.m.
MS. BARBARA BRINK, Alaska Public Defender Agency, said as a
defense attorney, it is difficult to understand the negative
feelings projected her way. She pointed out that defense
investigations are not designed to harass, intimidate, or invade
a victim's privacy. The defense investigation is designed to
implement the right to counsel. HB 397 impairs the legitimate
investigative effort to right to counsel by adding more
requirements and rules. She explained that police do the best
job possible when interviewing witnesses at the scene, but those
witnesses might be alcohol impaired or under extreme stress.
Sometimes interviewing witnesses who did not come forward to the
police can reveal facts that lead the prosecutor to conclude
that the initial charges were inappropriate. That is not a
miscarriage of justice, it allows the prosecutor to make a
decision with more truthful information. On the other hand,
further information may lead the defense attorney to conclude
the defendant has nothing to gain by going to trial and should
settle the case. She asked the committee to consider the
positive aspects of defense investigation. HB 397 will make it
more difficult for defense attorneys to interview witnesses and
result in more indirect investigations. She said she appreciates
the fact that parents should not be left in the dark, but the
police and prosecutors have no obligation to inform parents
about contact with minor victims.
MR. STEVE BRANCHFLOWER, Office of Victims' Rights, told members
the defense in any criminal case has the right to do an
investigation but that investigation is much different than a
police investigation. The police start out in the dark. They do
not know all or any of the facts about who is responsible. By
the time a person is charged, the police have often solved the
case. When a person is charged, the defense has a right to seek
copies of police reports, lab reports, and statements of the
victims and witnesses. Therefore when the defense starts its
investigation, it knows what is in the district attorney's file
and is not looking for evidence of what occurred. The defense is
looking for evidence to create doubt. The most convincing way to
do that is to obtain a tape-recorded statement from a victim or
witness to impeach at a trial. HB 397 does not change the
requirement that information be provided to a witness or a
victim where the statement from the victim or the witness is not
recorded. It simply focuses on a third way of obtaining
information. This bill requires parental consent if the defense
wants to obtain information from the minor and that the minor be
informed of his or her rights. It will help parents to know what
is going on in their children's lives and to make smart
decisions. He stated support for the bill.
SENATOR FRENCH asked if, under current law, the defense wanted
to talk to a witness but not record the statement, the defense
would have to get written consent and notify the witness that he
or she is under no legal obligation to talk to the defense. HB
397 would simply change the law to say if the defense wants to
take a statement from a victim or witness in a sexual abuse case
that is going to be recorded, the same notification must be
given.
MS. TONDINI affirmed that is correct.
CHAIR SEEKINS announced that public testimony was closed.
SENATOR THERRIAULT moved to delete Section 1 [Amendment 1].
CHAIR SEEKINS announced without objection, Amendment 1 was
adopted.
SENATOR OGAN moved SCS CSHB 397(JUD) from committee with
individual recommendations and attached fiscal notes.
CHAIR SEEKINS announced that without objection, the motion
carried.
CSHB 398(JUD)am-DOMESTIC VIOLENCE FATALITY REVIEW TEAM
REPRESENTATIVE NANCY DAHLSTROM, sponsor of HB 398, explained to
members this legislation will enable municipalities throughout
the state to create a domestic violence fatality review team for
the purpose of gaining knowledge and insight to more effectively
prevent domestic violence fatalities in the future. CSHB
398(JUD)am passed the House with unanimous support. She offered
to answer questions.
SENATOR FRENCH asked Representative Dahlstrom to elaborate on
the timing of establishing the fatality review teams.
REPRESENTATIVE DAHLSTROM said her understanding is that almost
all of the teams will be created after an offense has been
committed and adjudicated. However, in special circumstances, it
may be more effective to establish a team before a case is
completed.
She then informed members that she distributed copies of an
amendment, labeled Q.1, [Amendment 1].
SENATOR THERRIAULT moved Amendment 1 for the purpose of
discussion, which reads as follows.
23-LS1321\QA.1
Luckhaupt
9/9/04
A M E N D M E N T 1
OFFERED IN THE SENATE
TO: CSHB 398(JUD) am
Page 3, lines 16 - 19:
Delete all material.
Insert a new bill section to read:
"* Sec. 2. AS 24.65.170 is amended to read:
Sec. 24.65.170. Annual report. The victims' advocate
shall make available to the public an annual report of the
victims' advocate's activities under this chapter and
notify the legislature that the report is available. The
victim's advocate may include in the report a summary of
the advocate's participation as an ex officio member of
domestic violence fatality review teams established under
AS 18.66.400."
REPRESENTATIVE DAHLSTROM noted the amendment addresses a change
made to the bill on the House floor that did not meet the legal
standards.
CHAIR SEEKINS announced that without objection, the motion
carried.
MR. STEVE BRANCHFLOWER, Director of the Office of Victims'
Rights, stated support for HB 398.
SENATOR FRENCH asked Mr. Branchflower to address the timing
issue.
MR. BRANCHFLOWER thought the language on line 10, "or at an
earlier appropriate time," is a good catch-all phrase that will
allow for unforeseen circumstances. He agreed with
Representative Dahlstrom that in most cases, the teams would be
established after a case has been adjudicated, but under certain
circumstances, such as if a case is not prosecuted, a team would
be established earlier.
SENATOR FRENCH asked Mr. Branchflower to comment on the
confidentiality requirements in the bill.
MR. BRANCHFLOWER said to promote participant candor, a
confidentiality clause is necessary, otherwise participants will
be less likely to admit responsibility for actions that should
have been taken. The focus of the legislation is to improve the
system to help victims; it is not to find fault.
SENATOR FRENCH asked if the fatality review teams will have
subpoena power.
MR. BRANCHFLOWER was not sure.
REPRESENTATIVE DAHLSTROM said they would not.
LT. AL STOREY, Alaska State Troopers (AST), Department of Public
Safety (DPS), stated support for HB 398 as DPS believes these
review teams will improve the current system.
CHAIR SEEKINS announced that with no further participants,
public testimony was closed.
SENATOR OGAN moved SCS CSHB 398(JUD) from committee with
individual recommendations.
CHAIR SEEKINS announced with no objection, the motion carried.
He then adjourned the meeting at 10:07 a.m.
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