Legislature(1995 - 1996)

02/01/1995 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   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.                              
                                                                               

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