Legislature(1993 - 1994)
03/25/1994 02:45 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE March 25, 1994 2:45 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Suzanne Little MEMBERS ABSENT Senator Rick Halford, Vice-Chairman Senator George Jacko Senator Dave Donley COMMITTEE CALENDAR SENATE BILL NO. 349 "An Act amending Alaska Rule of Criminal Procedure 6(r) relating to admissibility of hearsay evidence by peace officers before the grand jury." SENATE BILL NO. 350 "An Act relating to a defendant's violation of conditions of release; and providing for an effective date." SENATE BILL NO. 351 "An Act amending Alaska Rule of Evidence 404, relating to the admissibility of certain character evidence in court proceedings." SENATE BILL NO. 353 "An Act amending Alaska Rule of Criminal Procedure 24(d) relating to peremptory challenges of jurors in felony criminal proceedings." CSHB 254(JUD) am (OPEN MEETING ACT) was scheduled, but not taken up this date. PREVIOUS SENATE COMMITTEE ACTION SB 349 - See State Affairs minutes dated 3/14/94. SB 350 - See State Affairs minutes dated 3/14/94. SB 351 - See State Affairs minutes dated 3/14/94. SB 353 - See State Affairs minutes dated 3/14/94. HB 254 - See Judiciary minutes dated 3/9/94, 3/16/94 & 3/21/94. WITNESS REGISTER Dean Guaneli, Assistant Attorney General Criminal Division P.O.Box 110300 Juneau, AK 99811-0300 POSITION STATEMENT: Offered information in support of SB 349, SB 350, SB 351, SB 353 Barbara Brink, Deputy Public Defender Alaska Public Defender Agency 900 W. 5th, No. 200 Anchorage, AK 99501 POSITION STATEMENT: Testified in opposition to SB 349, SB 350, SB 351, SB 353 Brant McGee 900 W. 5th, No. 525 Anchorage, AK 99501 POSITION STATEMENT: Opposed to SB 353, SB 349 Cindy Smith, Executive Director AK Network on Domestic Violence & Sexual Assault 130 Seward St., #501 Juneau, AK 99801 POSITION STATEMENT: Supports SB 349, SB 350, SB 351, SB 353 Jayne Andreen, Director Council on Domestic Violence & Sexual Assault P.O. Box 11200 Juneau, AK 99811-1200 POSITION STATEMENT: Supports SB 349, SB 350, SB 351, SB 353 ACTION NARRATIVE TAPE 94-24, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 2:45 p.m. Because the committee lacked a quorum, he stated that no formal action would be taken on the Governor's crime package legislation (SB 349, SB 350, SB 351 & SB 353) and the meeting would be considered a work session. DEAN GUANELI, Assistant Attorney General, Criminal Division, Department of Law, explained that the four bills before the committee are four of the six bills that comprise the Governor's crime package for this legislative session. The bills were developed after several months of work by prosecutors at the direction of former Attorney General Charles Cole, who wanted them to come up with ideas for changes to the criminal justice system that would be particularly directed toward protecting women and children, that would be narrow and be focused, and would, if possible, not cost any money. He noted all of the bills have been endorsed by a number of agencies around the state. Addressing SB 351 (CHARACTER EVIDENCE IN CRIMINAL TRIALS), which makes changes the evidence rules, Mr. Guaneli said Alaska Rule of Evidence 404(b) limits what the prosecution can introduce, and because of the Legislature's frustration with the way this rule has been interpreted by the courts over a number of years, the Legislature has made changes to this court rule a number of times in the past. Mr. Guaneli related that in many instances, particularly in sexual assault cases and other types of assault cases, defendants are allowed to claim, for example, that an sexual assault victim consented to the act, while at the same time being able to hide evidence that they in the past have committed other rapes or other attempted rapes. Someone who is charged with assault can claim that their victim was the first aggressor, their victim has a reputation for violence, while at the same time hiding evidence of their own past violence. Number 160 SENATOR TAYLOR asked how, merely based upon the unproven assertions of counsel through cross examination inquiry that an alleged consent occurred, would you ever get from that to the position where the rape shield laws are no longer applicable for this victim. MR. GUANELI answered that these cases often don't implicate the rape shield laws. The defendant may not wish to bring in evidence that the victim consented or had sex with somebody else on prior occasions, but it is enough to raise question in the jury's mind that there was consent and there was consensual sex on this particular occasion. Mr. Guaneli reiterated that the legislation corrects a number of particular problems with Rule 404 and how it has been interpreted. For example, on page 3, line 15, in the limiting language to show a common scheme or plan, it was determined that that limitation is too narrow and it should be any relevant evidence. Someone's past conduct is one of the best indications of future conduct, and as long as a judge has made a determination that a specific incident in a person's past is relevant to something that may have happened on this particular instance that the jury is considering, then that is something that ought to go in front of the jury. Number 375 MR. GUANELI explained that SB 350 (ARREST FOR VIOLATING RELEASE CONDITIONS) involves arrests arising out of domestic violence assaults. He said there is a situation in Alaska where someone could be charged with domestic assault, arrested, released on bail and given a number of stringent conditions by the judge to follow as a condition of getting out on bail. If those conditions are violated, there is a long process that it takes to get that person back in custody. It takes the officer going back to court, presenting evidence to a judge and getting an arrest warrant and then going and finding the person again and arresting the person. He said the kind of delays that are encountered really put women at risk. Number 405 MR. GAUNELI said SB 349 (GRAND JURY EVIDENCE BY POLICE OFFICERS) involve the use of hearsay evidence in grand juries if the hearsay is something that is conversations between officers assigned to particular case. It would allow the lead officer in a case to testify to a grand jury on something that was told to him by another investigating officer. He said it is a simple change, but it is a change that all police agencies support in order to get their officers back out on the street rather than in the court rooms. Number 470 MR. GUANELI said SB 353 (PEREMPTORY CHALLENGE OF JURORS) involves peremptory challenges for trial juries. In felony cases the prosecution can have six peremptory challenges to get a juror excused and the defense can do that with ten peremptory challenges. It many instances, it gives the defense a great advantage in selecting and tailoring that jury to the defense's ideal of what a jury ought to look like. The department believes it is appropriate to level the playing field and give both sides an equal number of peremptory challenges in selecting a jury. The legislation provides that each side be given six peremptory challenges. Number 505 SENATOR LITTLE asked if there was any opposition to the crime package legislation. MR. GUANELI responded that the Public Defender Agency has raised some objection on each of the bills. Number 540 BARBARA BRINK, Deputy Public Defender, Alaska Public Defender Agency, testified via teleconference from Anchorage in opposition to SB 349 (GRAND JURY EVIDENCE BY POLICE OFFICERS). The agency believes the legislation interferes with the constitutional right of the citizens of Alaska to a fair and reliable grand jury. She said a grand jury cannot make a fair and reliable determination of the credibility of a witness without seeing the witness. There are exceptions to this, and there are some hearsay rules that allow hearsay testimony, but those are when there are special circumstances surrounding the making of the hearsay statement that show it is reliable. She cautioned it is a real danger to allow police officers to decide whether this is a minor matter or an important matter. Addressing SB 350 (ARREST FOR VIOLATING RELEASE CONDITIONS), Ms. Brink said she believes the current system works very well. There are 24-hour magistrates, and daily arraignments in both district and superior court. She believes the procedure works well and that the proposed legislation is too broad. TAPE 94-24, SIDE B Number 005 SENATOR TAYLOR commented that in areas like Anchorage and Fairbanks there are judicial officers more readily available, but in the rural areas it becomes more difficult. MS. BRINK responded that she has worked in some of the smaller communities, and she has found that the smaller courts are actually pretty accommodating. Number 110 SENATOR TAYLOR asked Mr. Guaneli how to prevent people from misusing this system that he is requesting be set up. DEAN GUANELI responded that in any case involving emotional circumstances, there are going to be people who are upset and are going to say things that they don't mean. What is important is that the police officer must have reasonable grounds to believe that bail conditions have been violated and then they can make an arrest. They are not required to make an arrest, but they have the discretion to do so. Number 150 MS. BRINK then spoke to SB 351 (CHARACTER EVIDENCE IN CRIMINAL TRIALS) which is opposed by the Public Defender Agency. They believe: opening trials too broadly to other claims of bad acts risks depriving the citizen of Alaska of the constitutionally required presumption of innocence and due process of law; the changes would result in delay, expense and time-consuming mini trials; and the bill does nothing to accomplish its stated goals of reducing evidence about and trauma to a victim. She said the stated purposes of the bill are laudable, but the bill itself does not provide any additional protection to victims either in terms of the evidence about them that comes in or in terms of the amount of trauma they might suffer by having been involved in the criminal justice system. She added that victims of sexual assault cases are already protected by the rape shield statute, and she urged defeat of the legislation. Number 200 There was extensive discussion on a case relating to a serial rapist from California who served hard time in San Quentin after being convicted of raping two women in California. Not long after his release, he moved to Alaska and began to prey on Alaskan women. He was charged in Alaska with the same crime, but under current Alaska law, the jury would never learn the truth about the individual's prior rapes and, instead, he successfully hid behind the loophole in Alaska law that keeps prior rapes out, even where the defendant claims consent. Even after the individual was convicted, the judge allowed him out on bail pending his appeal. Last year, while out on the bail, the man was again arrested and charged with assaulting two more innocent Alaskan women. Number 420 MS. BRINK also testified in opposition to SB 353 (PEREMPTORY CHALLENGE OF JURORS). She stated that she does not believe that the goals of the bill, to level the playing and to save time and money, will be satisfied by passage of the legislation. She said when selecting a perspective jurors, the goal is to get fair jurors, so the number being allocated on the defense side is recognition of the fact that we don't start out evenly, that many people come into the court room with preconceived ideas and that it is necessary to give extra peremptory challenges in order to make sure that the presumption of innocence is followed by everyone in the court room. Also, she believes that there are better ways to save time and money in jury selection. Ms. Brink pointed out that the proposal was considered by the Alaska Criminal Rules Committee several times, and it was one of the few areas where everybody on the Criminal Rules Committee agreed they did not want to make any changes to the peremptory challenges. Number 524 SENATOR TAYLOR asked Ms. Brink is she would have any objection to making it 10 and 10. MS. BRINK answered that she wouldn't, and she added that in her experience, neither side exercises all of its peremptory challenges as a usual matter. What is set up is usually adequate for almost every case, however, more might be requested for an extremely complicated or serious case. Number 557 BRANT MCGEE, testifying from Anchorage on SB 353 (PEREMPTORY CHALLENGE OF JURORS), said he shares Ms. Brink's sentiments on the bill based on his 16 years of experience as an attorney and his experience of trying 55 and 60 trials. Mr. McGee believes that the playing field is relatively level right now and by changing it to six and six would make it a lot less even than it is right now and make it an unfair process. He said most people think that most criminal defendants are guilty when they walk in the room. The presumption of innocence is something that most jurors attempt to apply once they are jurors. Mr. McGee said he strongly opposes passage of SB 353 because of the fact that this is not going to save time and the fact that it will be unfair. Addressing SB 349 (GRAND JURY EVIDENCE BY POLICE OFFICERS), Mr. McGee said he shares Ms. Brink's sentiments regarding this rule, however, he recognizes that in many case the testimony of police officers is somewhat cumulative and proforma before a grand jury. TAPE 94-25, SIDE A Number 031 CINDY SMITH, Executive Director, Alaska Network on Domestic Violence & Sexual Assault, stated her support for SB 349, SB 350, SB 351 and SB 353. Addressing SB 350 (ARREST FOR VIOLATING RELEASE CONDITIONS) Ms. Smith said this idea was originally brought to the Network's attention by judges in Fairbanks and Anchorage, so the judges did not agree that the current system for rotation of bail and bench warrants, etc., was appropriate or useful. Ms. Smith said the process is not timely for most victims of domestic violence. Police officers will make the judgement, not the victim, so it is not an automatic sort of thing that because somebody calls the police that there is going to be an arrest. Ms. Smith pointed out that in domestic violence cases, particularly when there is an offender who is stalking, or is trespassing on property, or who is harassing to a very significant degree, the victim's liberty is also at stake. Number 113 Addressing SB 351 (CHARACTER EVIDENCE IN CRIMINAL TRIALS), Ms. Smith said her experience in six years in the field of sexual assault cases is that victims are, in fact, routinely put on trial, that their sexual history is not considered exempt from examination, and that no case that she is aware of has any defendant's prior conviction been allowed, particularly in adult rape cases. She said for the Rules of Evidence to allow significant portions and significant questions of the victim's activities to be examined, but to prevent that same kind of examination to go on about what the defendant's past is simply unfair. Number 200 JAYNE ANDREEN, Director, Council on Domestic Violence & Sexual Assault, stated the Council's strong support for the Governor's crime package. Addressing SB 350 (ARREST FOR VIOLATING RELEASE CONDITIONS), Ms. Andreen said one of points that needs to be stressed from the victim's standpoint is that when talking about domestic violence, stalking and sexual assault types of cases, we're talking about the key issues being power and control, the ability of the alleged offender to have power over the victim and to maintain a level of control. One of the clearest ways to give the power back to the victim is by using a system that works. She added that it is not just liberty for the victim they are concerned about, it is her right to safety. Speaking to SB 351 (CHARACTER EVIDENCE IN CRIMINAL TRIALS), Ms. Andreen pointed out that based on statistics and projections in 1992, between 4,000 and 8,000 sexual assaults took place in the State of Alaska. In reality, 566 of those assaults were reported to law enforcement, and approximately 60 percent of those that were reported were denied or declined for prosecution. She said the issue of consent is one that the victims know from the time the assault happens is going to be something that they are going to have to deal with. When an assault victim has to go before the court and listen to and respond to innuendos that she was at fault, that she caused it all to happen, it is more devastating than the actual physical assault in many cases. She stressed that rape is happening way too often in our communities and it is not going to stop until we say we have had enough. There being no further testimony on the legislation before the committee, Senator Taylor adjourned the meeting at 3:35 p.m.