Legislature(1995 - 1996)
02/01/1995 01:30 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SENATE JUDICIARY COMMITTEE February 1, 1995 2:00 p.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Lyda Green, Vice-Chair Senator Mike Miller Senator Johnny Ellis MEMBERS ABSENT Senator Al Adams COMMITTEE CALENDAR SENATE BILL 13 An Act relating to the admissibility of evidence and testimony in criminal and civil proceedings; directing the admissibility into evidence of deoxyribonucleic acid (DNA) profiles in civil and criminal proceedings; amending Rules 702(a) and 703 of the Alaska Rules of Evidence to modify the rule relating to the basis or foundation for the admissibility of expert opinion testimony that is based on scientific evidence; and amending Rules 401, 403, and 705 of the Alaska Rules of Evidence. SENATE BILL 14 An Act relating to criminal mischief. SJUD - 2/1/95 SENATE BILL 10 (CRIMINAL DISCOVERY RULES) was scheduled, but not taken up this date. PREVIOUS SENATE COMMITTEE ACTION SB 13 NO PREVIOUS ACTION SB 14 NO PREVIOUS ACTION SB 10 NO PREVIOUS ACTION WITNESS REGISTER Dean Guaneli Assistant Attorney General Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Testified in favor of SB 13 Jack Quill Acting Unit Chief DNA Analysis Laboratory Federal Bureau of Investigation Washington, D.C. POSITION STATEMENT: Testified on SB 13 Sgt. Joe D'Amico Alaska State Troopers Department of Public Safety 5700 E. Tudor Rd. Anchorage, AK 99507-1225 POSITION STATEMENT: Testified on SB 14 George Taft Chief Scientific Crime Detection Laboratory Department of Public Safety 5500 E. Tudor Rd. Anchorage, AK 99507-1221 POSITION STATEMENT: Testified on SB 13 Jack Chenoweth Legislative Legal Counsel Legislative Affairs Agency 130 Seward St., Ste 409 Juneau, Alaska 99801-2105 POSITION STATEMENT: Testified on SB 13 ACTION NARRATIVE TAPE 95-3, SIDE A Number 001 SJUD - 2/1/95 CHAIRMAN ROBIN TAYLOR called the Judiciary Committee meeting to order at 2:00 p.m. Present were Senators Green, Miller and Taylor. The committee took up SB 13 as the first item of business. SENATOR LEMAN, sponsor of SB 13, informed committee members that in 1990 the 16th Legislature passed a similar DNA bill, SB 275, without objection, which was vetoed by the Governor. SB 13 changes the current court standard which provides for the use of the Frye test to a standard that would allow the use of the Daubert test and reduces the costs associated with using DNA evidence in trials. Those funds could be used elsewhere in the prosecution of crimes. This bill updates Alaska's standards with current technology and enables prosecutors to have more tools available to them, as allowed by the U.S. Supreme Court. CHAIRMAN TAYLOR asked SENATOR LEMAN if he would like the committee to proceed with the proposed committee substitute. SENATOR LEMAN answered affirmatively and summarized the following changes made in the committee substitute. On page 3, paragraph 1, Section 2(b)(1), the 45 day time limit was removed, because the processing of DNA evidence may take longer. The new language reads "on or before a date determined by order or rule of the court." The same language was inserted in Section 2(b)(2) to replace the 30 day time frame and in Section 2(d) to replace the 10 day time frame. The DNA "profile" on line 18 of page 3 has been redefined to include newer analysis techniques so that polymorphism analysis is not the only technique identified by law. On line 29, the 45 day reference has been changed to be consistent with the other timings. On page 4, changes were made throughout to make criminal actions the same as civil actions. Number 103 SENATOR MILLER moved to adopt the proposed committee substitute for SB 13 in lieu of the original bill. With no objection, the motion passed. CHAIRMAN TAYLOR announced the committee would be working on the "Work Draft Chenoweth 1/31/95" version. Number 124 Jack Quill, Acting Unit Chief of the DNA Analysis Laboratory for the FBI, testified via teleconference. He informed committee members that he was aware of the changes made in the committee substitute. Mr. Quill noted he has testified in over 75 litigations in 25 different states to date, both disability hearings as well as trials. In his experience, the technology as applied to currently used DNA profiling methods is considered valid and reliable. He stated the trial process provides both the defense and prosecution the opportunity to hear witnesses and to negate particular testimony due to a procedural error or technique, and provides the opportunity to set forth additional findings and the procedures that are currently in use. The basic premise of an admissibility hearing is the acceptance by the scientific community of procedures used. A consensus was reached by the National Research Council (a group of the National Academy of Science) in support of the use of DNA profiles as admissible evidence in courts of law. SENATOR GREEN asked if Mr. Quill was aware of any particular group who violently opposes the admission of DNA testing. Mr. Quill responded the current area of discussion is in population genetics. The underlying molecular biology theory is accepted but there is an ongoing discussion about the statistical interpretation. There is a concensus among those doing forensic testing regarding statistical approaches that can be used. Number 187 SENATOR TAYLOR clarified that a statistical interpretation would not clearly identify the defendant but could identify a subgroup within a given population with a particular trait in their genetic structure. The debate would then be over the size of that group, and what percentage of the population it represented. Mr. Quill explained that there are two different technologies being used, the restriction fragment length polymorphism technique (RFLP) and a newer technique called polymerase chain reaction (PCR). PCR tests determine 21 different DNA types in one particular location. New systems are coming on line that are also being used. The ability to discriminate is higher using the RFLP technique at this point in time but the techniques are evolving very quickly. The National Research Council has convened a new group to review various population studies to devise new statistical interpretations. SENATOR ELLIS arrived at 2:12 p.m. SENATOR TAYLOR noted CSSB 13 includes a more generic definition of DNA technology and deletes the specific time limit for notification in order to give the court the opportunity to link up with technology. Number 246 Dean Guaneli, Assistant Attorney General, Criminal Division, Department of Law, testified. The underlying scientific debate regarding the viability of this type of testing has been laid to rest: that the DNA molecule can be characterized in terms of various characteristics and can be compared to known statistical databases. What is in dispute among some segments of the scientific community is what conclusions can be drawn from that testing and what kind of probabilities can be applied to various DNA profiles. That ongoing scientific discussion gets into the courts and effects how this evidence is used in specific criminal prosecution. Mr. Guaneli gave the following example. With fairly rudimentary testing, a blood sample can be taken at a crime scene and can be compared with a known blood sample from a suspect. Both samples could be Type A blood. Those test results could eliminate approximately 70 percent of the population. With DNA testing, theoretically, the odds can be increased into the millions, so that there would only be one person in a million with the same DNA profile as another person. When talking about probabilities in the millions, we have to rely on fairly sophisticated genetic studies of different population groups. Different conclusions can be drawn. The cutting edge of that scientific research is being conducted at the FBI, at various universities across the country, and at various sophisticated commercial laboratories. Much of that cutting edge research has not percolated down to the general scientific community. Unfortunately the test used by the courts to admit scientific evidence in a trial is a test that derives from the 1920's, known as the Frye test. The Frye test bases admissibility on whether the scientific evidence is generally accepted within the scientific community. This can exclude cutting edge technology which is not accepted by the general scientific community at this time, but is accepted at the more sophisticated laboratories. The federal courts have moved to a more modern standard which looks at the scientific validity of the technology. CSSB 13 seeks to adopt the more modern federal test for admissibility so that Alaska can keep pace with rapidly progressing technology. Mr. Guaneli stated the use, as evidence, of the DNA analysis with a higher probability will be needed in order to obtain convictions. CSSB 13 accomplishes that by amending Rule 702. Number 324 Chairman Taylor expressed concern about modifying Court Rule 702. He felt the modification should be narrowly defined to DNA so that a Pandora's Box of other skills and questionable techniques by alleged experts cannot be justifiably used. Mr. Guaneli agreed that observation is legitimate and noted other DNA bills currently in the Legislature restrict this newer test of admissibility to DNA evidence only. Some prosecutors have expressed concern that opening Rule 702 too much could allow for "junk science" and that for enough money, a defense attorney could hire an expert who would say just about anything for enough money. However, the overall judgement of prosecutors in Alaska is that with this standard as applied, that kind of evidence can be excluded. Number 358 SENATOR TAYLOR referred to the utilization of "enhanced memory techniques" by experts and explained the use of this hypnosis technique has led to convictions based upon strange and bizarre responses. He remarked that he believes this technique is now becoming discredited, but at the time it was offered, the public's desire to go forward with this type of testimony was at a peak, and it could be considered scientifically valid. Mr. Guaneli answered that the Alaska Court of Appeals has determined that hypnotically enhanced testimony is not admmissible in criminal prosecutions. SENATOR TAYLOR discerned he is willing to go a little farther than the norm at this point because of the rapid evolutionary changes in DNA technology, but he expressed concerned about the language in the bill. Number 384 Mr. Guaneli reviewed the evidence rules. Rule 702(a) follows the standard from the U.S. Supreme Court. An additional change to another evidence rule (703) is in reference to expert opinions and specifically eliminates the principle of "general acceptance" as applied by the Frye test. It negates the need to prove that evidence is generally accepted among the scientific community. Number 397 SENATOR ELLIS asked if the committee substitute makes any changes regarding the types of people DNA testing would be used on. Mr. Guaneli stated SB 13 relates only to admissibility of evidence in a criminal proceeding, other DNA bills relate to DNA databanks which are a collection of samples from different types of offenders. He explained that because the tests are expensive, DNA evidence is only used in felony cases, generally in murder cases. Number 415 SENATOR ELLIS asked how things would change in the courtroom if CSSB 13 were to pass. He questioned whether this bill lowers the requirements for substantiation. Mr. Guaneli described a recent case in which a sample of genetic material from the crime scene and a sample from the suspect was tested. Based on the test conclusions, world-reknowned experts stated, as a matter of probability, that the odds of someone else having the same genetic make-up were on the order of 1 in 50,000 or 1 in 100,000. The judge, applying the Frye test, disallowed the use of those odds as evidence, but allowed a probability of 4 out of 100 to be used. Those odds are only slightly more accurate than blood tests. Mr. Guaneli explained that a jury would feel much more comfortable basing its decision on the experts' testimony. Number 445 SENATOR ELLIS commented that the fact that adequate studies have not been conducted on the Alaska Native population is reason for concern. He questioned whether the lack of studies would be cause for greater conjecture in the experts' testimony. Mr. Guaneli replied, to his understanding, there have been some genetic studies of Alaska Natives, and more are ongoing. The world's foremost geneticists argue that there are a lot of subgroups within the human population, in general and within racial populations, but there has been no significant distinction between the genetic make- up of any of those subgroups found to date. Additional subgroups can always be identified, but geneticists have found greater intragroup genetic variations than intergroup genetic variations. For that reason they have not been terribly concerned about the lack of a huge statistical base among subgroups. Mr. Guaneli stated that additional subgroup studies are confirming that position. Number 478 SENATOR ELLIS referred to information collected from Dr. Alan Barnes of the UAA Justice Center which concludes that small isolated populations share multiple genetic markers. Dr. Barnes stated the probability would be changed significantly as 35 individuals in a small Alaska Native village might have a 1 in 100 chance of sharing similar genetic markers as opposed to 1 in 1,000,000 for the general Alaska population. SENATOR ELLIS asked what the duties of the State are regarding adequate studies to prevent unequal treatment and whether there would be an enhanced chance for appeal based on the lack of studies. Mr. Guaneli noted there are several cases before the Alaska Court of Appeals on the question of DNA admissibility because of the probability issue. Mr. Guaneli felt the debate over the reliability of distinctions made in genetic material has been settled and that as long as the court is applying the test of admissibility approved by the Legislature, due process would be served. He reiterated the court process allows for cross examination. Number 506 SENATOR TAYLOR felt this question would be of greater import if a crime occured within a village where several other people may share common traits, rather than if a crime occured in Los Angeles. Number 519 SENATOR ELLIS asked if any ongoing committees internal to the court system are working on amending Rules 702 and 703. Mr. Guaneli was unaware of any. SENATOR ELLIS asked Mr. Guaneli to check with the court system. Number 557 SENATOR ELLIS directed his question regarding unique subgroup population studies to Mr. Quill of the FBI. Mr. Quill informed the committee that the FBI uses a method of statistical approach called "binning." This method allows population studies to be done to determine frequency of occurence and places the frequency of occurence in with other occurences to minimize the bias toward any particular subgroup. TAPE 95-3, SIDE B SENATOR ELLIS asked if, by using that standard, it would be impossible to "mess up" in an Alaska court case with an Alaska Native as the accused perpetrator. Mr. Quill noted the Alaska State Troopers are doing the DNA profiling, and he was sure they have conducted various studies by which they base their statistical interpretations which are accepted as valid and reliable. SENATOR ELLIS asked if Mr. Quill was aware of any studies that have been conducted specific to the Alaska Native population. Mr. Quill offered to check his data on world population studies for that information. SENATOR TAYLOR noted that because of the isolated nature of many of Alaska's villages, a study of one village may be completely irrelevant to any other village. He commented that the DNA profiles of the inhabitants of an isolated village would have a greater commonality among DNA profiles. SENATOR TAYLOR clarified that issue is not addressed in SB 13, that is what a judge would have to decide when reviewing evidence. SB 13 allows the judge to listen to newer or cutting edge techniques. Mr. Quill agreed that SB 13 allows the court more flexibility to accept evidence as admissible, allows for cross examining to deal with this controversy, and reduces costs to the state. Mr. Quill was unable to locate the information on the Alaska Native studies, but offered to send the information to the committee. SENATOR ELLIS discussed a book entitled Exploding the Gene Myth and questioned whether it was a reputable source of information. In the book, the author contends that the FBI's forensic laboratory ran DNA profiles on blood drawn from 225 FBI agents (in 1991). A duplicate test conducted at a later date found one in six profiles did not match the original. Mr. Quill commented the author may have confused the study with a study on a larger group of 750 caucasians that consisted of the same 225 agents tested in the initial study. He explained that duplicate DNA profiles were identified but he felt the ability to verify the duplication of profiles to be a positive aspect. He added that the FBI's work has been scrutinized by an individual from Yale University (name indiscernible). A 1992 article was published in "Nature," in which this individual concluded that the only thing to fear from DNA profiling as it is conducted now is that one may have an evil, identical twin. SENATOR TAYLOR announced that due to time constraints, SB 14 and SB 10 would be heard next Monday, February 6. Number 874 George Taft, Director of the Alaska Crime Lab testified. Mr. Taft informed committee members that the Alaska Crime Lab received a grant several years ago from the Alaska Science and Technology Foundation to do sampling of the Alaska population. To date, several hundred blood samples have been collected using the PCR technique. A molecular biologist on the staff has been analyzing the samples and is currently doing so at the FBI laboratory. He noted his staff has testified in six to ten cases; Frye hearings were held in two cases. SENATOR TAYLOR asked if those samples are from unique groupings. Mr. Taft stated they are addressing that issue by sampling different groups in the State using the PCR technique and categorizing the samples being selected. SENATOR ELLIS asked what percentage of the work that needs to be completed for Mr. Taft to feel comfortable with the statistical interpretation, has been done to date. Mr. Taft stated the work is ongoing and will continue for another year, so the question is difficult to answer. SENATOR ELLIS questioned whether the relative probability or accuracy of DNA analyses has increased during consecutive trials as more of the blood samples have been analyzed. Mr. Taft stated they have taken a very conservative approach and he did not recall that any numbers were given out in the testimony. SENATOR ELLIS asked for clarification. Mr. Taft explained the tests could be used to determine whether a person could be included in a group or not, but was not more specific than that. He added that 30 percent of DNA testimony excludes the suspect. SENATOR ELLIS questioned whether DNA evidence could provide more accurate information. Mr. Taft commented that the PCR technique does permit more accurate information and can give 21 blood group types versus the four blood types in the ABO system. SENATOR ELLIS asked if the newer techniques are too costly to use. Mr. Taft replied the RFLP is extremely expensive at this time and the techniques are still evolving. The Alaska Crime Lab is using the PCR technique as a screening procedure, and if warranted, samples can be sent for further analysis using the RFLP technique. SENATOR ELLIS asked Mr. Taft if an ethnic breakdown was available of the samples taken. Mr. Taft said that information would be provided. SENATOR TAYLOR requested additional information on the range of the sample, and when significant accuracy within various groups could be established. Mr. Taft agreed to provide the information by Monday. SENATOR TAYLOR asked for additional information on the DNA subspecies question in regard to animals. Jack Chenoweth, Legal Services, testified. Mr. Chenoweth drafted SB 13. SENATOR TAYLOR directed Mr. Chenoweth to provide the committee with language to be included in a new committee substitute to narrow the evidence definition to include only DNA testing. He also asked for an explanation of why the original draft of SB 13 amends Rules 401, 403 and 705, but CSSB 13 only amends Rule 403. Mr. Chenoweth answered that he used SB 275 as a model for SB 13 and the final version of SB 275, as it went to Governor Cowper, amended Rules 401, 703 and 705. During the committee process the Rules were removed and then reinstated. Mr. Chenoweth felt if a gray area exists as to their inclusion, it would be better to include them as a precautionary measure. SENATOR TAYLOR agreed. Mr. Chenoweth further explained that Rule 401 refers to relevant evidence, Rule 705 refers to evidence requirements. SENATOR ELLIS asked if a proposed committee substitute could be provided prior by Monday's meeting. Mr. Chenoweth stated it could be provided late Thursday afternoon. SJUD - 2/1/95 SENATOR LEMAN, sponsor of SB 14, testified. SB 14 changes the penalty for stealing a vehicle from a class A misdemeanor to a class C felony. He deferred further testimony to Sgt. D'Amico of the Alaska State Troopers. Sgt. Joe D'Amico stated the Alaska State Troopers have been averaging approximately 200 joyriding arrests per year. Because a large percentage of the offenders are minors, they are not prosecuted by the Department but instead are referred to the Department of Health and Social Services. SB 14 applies to all propelled vehicles including snowmobiles, ATVs, boats, aircraft, etc. This would effect rural Alaska where the Alaska State Troopers average approximately 700 reported thefts per year. SENATOR TAYLOR noted that several legislators have worked on similar legislation over previous years. He asked if, by amending the crime to a felony, the manner in which a large portion of the offenders are being treated will not change because juveniles will still go to the same probation officer. SENATOR TAYLOR asked what percentage of the vehicles are stolen by juveniles. Sgt. D'Amico did not have hard data but estimated that probably over 50 percent of cases handled by the Alaska State Troopers involve juveniles. SENATOR TAYLOR noted that if a juvenile is under the influence, steals a vehicle and is speeding at 90 mph, he will be treated as an adult because it is a moving traffic violation. However, a juvenile will not be criminalized for stealing the vehicle if he is not speeding and under the influence. SENATOR TAYLOR felt the subject needs serious work. SENATOR TAYLOR announced SB 14 will be held until Monday, as well as SB 10. He adjourned the meeting at 3:25 p.m.