Legislature(1995 - 1996)

02/06/1995 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE JUDICIARY COMMITTEE                                  
                        February 6, 1995                                       
                           1:30 p.m.                                           
  MEMBERS PRESENT                                                              
 Senator Robin Taylor, Chairman                                                
 Senator Lyda Green, Vice-Chairman                                             
  MEMBERS ABSENT                                                               
 Senator Mike Miller                                                           
 Senator Al Adams                                                              
 Senator Johnny Ellis                                                          
  COMMITTEE CALENDAR                                                           
 SENATE BILL NO.  10                                                           
 "An Act revising Rule 16, Alaska Rules of Criminal Procedure,                 
 relating to discovery and inspection in criminal proceedings, to              
 adopt the comparable federal rule."                                           
 SENATE BILL NO. 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 NO. 14                                                            
 "An Act relating to criminal mischief."                                       
 PREVIOUS SENATE COMMITTEE ACTION                                              
 SB 10 - See Judiciary minutes dated 2/1/95                                    
 SB 13 - See Judiciary minutes dated 2/1/95                                    
 SB 14 - See Judiciary minutes dated 2/1/95                                    
 WITNESS REGISTER                                                              
 Joe Murdy                                                                     
 Assembly Member                                                               
 Municipality of Anchorage                                                     
 P.O. Box 196650                                                               
 Anchorage, AK  99519-6650                                                     
  POSITION STATEMENT: Testified in support of SB 14                            
 John Salemi                                                                   
 Alaska Public Defender Agency                                                 
 900 W 5th Ave. Ste. 200                                                       
 Anchorage, AK  99501-2090                                                     
  POSITION STATEMENT:  Testified on SB 10 and SB 14                            
  Kevin O'Leary                                                                
 Chief of Police                                                               
 Anchorage Police Department                                                   
 P.O. Box 196650                                                               
 Anchorage, AK  99519-6650                                                     
  POSITION STATEMENT:  Testified in support of SB 14                           
   Dean Guaneli                                                                
 Assistant Attorney General                                                    
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, AK  99811-0300                                                        
  POSITION STATEMENT:  Testified in support of SB 10                           
 ACTION NARRATIVE                                                              
 TAPE 95-4, SIDE A                                                             
 Number 001                                                                    
  CHAIRMAN ROBIN TAYLOR  did not call the Judiciary meeting to order           
 because a quorum was not present.  He announced that he and Senator           
 Green would listen to testimony on the bills scheduled to be heard.           
 It was 1:35 p.m.                                                              
 SJUD - 2/6/95                                                                 
 JOE MURDY, Anchorage Assemblyman, testified in support of SB 14.              
 The Anchorage Assembly has a growing concern about the increasing             
 number of vehicles that are stolen every year in Anchorage.  In               
 1994, 2,534 vehicles were stolen.   When apprehended, the offender            
 is given a ticket for joyriding which carries a fine of $100 to               
 $200 for the first offense.   Insurance rates are affected by these           
 thefts, and citizens are inconvenienced until their vehicles are              
 found.  The Anchorage Assembly passed a resolution in support of SB
 SENATOR TAYLOR asked if 50 percent of the thefts are committed by             
 juveniles.  Mr. Murdy replied affirmatively.  SENATOR TAYLOR stated           
 changing the violation to a Class C felony will not affect how                
 juveniles are charged.  He suggested restructuring the concept of             
 SB 14 to remove the juvenile status so that the standards that                
 apply to adults involved in moving violations would apply to                  
 juveniles.  SENATOR TAYLOR discussed the possibility of amending              
 a bill pending in another committee that addresses similar                    
 MR. MURDY informed committee members the Anchorage Assembly is in             
 the process of passing an ordinance that would allow the                      
 Municipality to impound an offender's car for 30 days.  This                  
 ordinance is in response to the problem of looting by juveniles.              
 He offered to send a copy of the resolution passed by the Assembly            
 to the committee.                                                             
 JOHN SALEMI, Director of the Alaska Public Defender Agency,                   
 testified on SB 14.  He noted the fiscal impact of SB 14 may have             
 escaped the notice of the Department of Law.  If SB 14 passes,                
 those cases will be referred to the State District Attorney's                 
 office, since the Anchorage Municipal prosecutor does not handle              
 felony cases.  The Department of Law currently handles about 99               
 cases statewide, they may need to rethink the fiscal impact now               
 that several hundred cases may be referred to the Anchorage                   
 District Attorney's office.  He explained that 1100 auto thefts               
 were reported in 1993, and approximately 200 people were caught and           
 arrested.  In 1994, the number of reported incidents was over                 
 2,000.  He questioned whether auto theft cases would be given a               
 lower priority since the number of violent crimes taken on by the             
 Department of Law has increased.  This may require an additional              
 half-time position to the Felony Intake Unit.                                 
 CHIEF O'LEARY, Anchorage Municipal Police Department, reported the            
 following statistics.  In 1993, 1,387 stolen vehicles were                    
 reported; in 1994, 2,534 were reported; and during the month of               
 January, 1995, 260 reports were filed.  The vast majority of                  
 vehicles are recovered.  In 1993, 275 individuals were arrested for           
 vehicle theft.  He felt additional arrests would be made if this              
 offense was treated more seriously.  There are groups of people who           
 steal vehicles for felonious purposes, therefore the Police                   
 Department is in favor of increasing the penalties for that reason.           
 He added the District Attorney's office uses discretion when                  
 determining charges against an offender.                                      
 SENATOR TAYLOR asked what percentage of the offenders are                     
 juveniles.  Chief O'Leary replied, in 1993, 123 adults and 152                
 juveniles were arrested for that offense.                                     
 SJUD - 2/6/95                                                                 
 SENATOR TAYLOR announced the committee would be discussing Work               
 Draft F of SB 10.                                                             
 SENATOR LEMAN, sponsor of SB 10, informed committee members that              
 the original intent of SB 10 was to adopt the comparable federal              
 rule that corresponds to Alaska Rule 16.  However, that cannot be             
 done, therefore the committee substitute addresses the issue from             
 a different perspective.  This rule revision would allow the                  
 prosecution to obtain information from the defense, and make it               
 comparable to what the defense is able to get from the prosecution.           
 This idea originated at the Crime and Corrections hearing last fall           
 in Anchorage.  Former District Attorney Ed McNally raised this                
 issue as one that needed revision to create a more equitable                  
 playing field in the discovery of information.                                
 SENATOR TAYLOR announced to those testifying on SB 10 that no                 
 action would be taken on the bill until those interested have had             
 the opportunity to review Work Draft F.                                       
 DEAN GUANELI, Assistant Attorney General, reviewed Work Draft F of            
 SB 10 for committee members.  He explained the discovery rules                
 allow the defense access to all evidence generated by the                     
 prosecution, but the prosecution does not have access to                      
 information generated by the defense.  SB 10 would correct that               
 situation by making discovery full and fair on both sides.  The               
 Department of Law has been attempting, for a number of years, to              
 get changes to the discovery rules through the Criminal Rules                 
 Committee appointed by the Supreme Court without success.  The                
 Criminal Rules Committee has made minor changes to the discovery              
 rule, some of those changes are incorporated in SB 10.                        
 Essentially, Work Draft F provides a two-tiered system of                     
 discovery.  Tier 1 would require the prosecution to turn certain              
 types of information over to the defense (page 1, line 11 through             
 page 2, line 13).  This information is constitutionally required              
 and would show that the defendant is innocent.  Grand Jury material           
 would also be given to the defense, as well as information required           
 by state statute.  Simultaneously, the defense would be required to           
 release information about the defenses it intends to raise.  If the           
 defense wants more information, such as witness statements and                
 names and addresses of experts, it must agree to provide the                  
 prosecution with similar information.  This would be the second               
 tier of Discovery and would be an option the defense could choose             
 to pursue.  The defense would waive Fifth Amendment rights when               
 opting into Tier Two.  That structure maintains constitutionality             
 given the Supreme Court's Scott Decision.  Other changes in Work              
 Draft F move sections to pages 7 and 8 to renumber existing                   
 sections.  Mr. Guaneli stated the change would provide full and               
 fair discovery on both sides.  The Alaska Supreme Court has amended           
 its civil rules so that mandatory discovery is required on both               
 sides.  When both sides are equally informed, fairer and more just            
 results will occur as a result of litigation.  It also allows                 
 fairer results in pretrial resolution of a matter.                            
 SENATOR TAYLOR asked whether the provision that requires the                  
 disclosure of physical evidence would abridge a person's Fifth                
 Amendment right since the evidence would be used against the                  
 defendant.  Mr. Guaneli replied that specific provision was                   
 recommended by the Criminal Rules Committee as the defense attorney           
 is ethically obligated to turn over physical evidence in their                
 possession.  The Fifth Amendment guarantee is protected by the                
 provisions beginning on page 2, line 3.  He explained in many cases           
 the defense attorney will turn over the murder weapon to the police           
 but will not disclose the source.                                             
 SENATOR TAYLOR noted if the client reveals evidence to his/her                
 attorney, the attorney would be required to advise the client to              
 turn the evidence over, otherwise the attorney would be an                    
 accomplice to the crime.  Under current law, and the provisions of            
 SB 10, the attorney is not required to disclose the source of the             
 evidence.  Mr. Guaneli stated the evidence can be used if the                 
 prosecution can establish, through independent means, it is                   
 relevant to the case, i.e. through fingerprints.                              
 Number 429                                                                    
 SENATOR GREEN asked if the defense is not required to provide the             
 prosecution with any information under the current system.  Mr.               
 Guaneli responded the defense is currently required to disclose the           
 names of expert witnesses that the defense intends to use at trial.           
 SENATOR TAYLOR asked if SB 10 might prevent the defense from hiring           
 experts and cause them to utilize other devices.  Mr. Guaneli felt            
 some defense attorneys might not choose to opt into these                     
 provisions, although most find expert testimony very useful in                
 particular types of cases.                                                    
 SENATOR TAYLOR stated the current system that requires the                    
 prosecution to disclose information occurred through court                    
 decision.  He asked if changes to discovery rules have been made in           
 other states.  Mr. Guaneli replied the State of Florida has the               
 two-tiered system and about 99 percent of the defendants opt into             
 that system, and California has a similar provision which may have            
 been changed through a constitutional amendment.  SENATOR TAYLOR              
 asked if that is why Judge Ito took the exceptional step of                   
 allowing the prosecution a second opening argument because of a               
 violation by the defense regarding the list of witnesses and asked            
 if that would not be a violation under Alaska's current rule.  Mr.            
 Guaneli noted it would not, but some judges have tried to require             
 the defense to list witnesses at the beginning of the trial.  He              
 noted that Alaska has a relatively small jury pool, and witnesses             
 and jurors may be familiar with each other.  Early disclosure of              
 witness lists would prevent problems arising from that familiarity.           
 SENATOR TAYLOR acknowledged that occurrence and stated that is one            
 reason why changing the rule may be of benefit to the system.  He             
 noted this issue is important and requires a thorough review.                 
 Number 498                                                                    
 JOHN SALEMI testified on SB 10.  He felt, from the defense's                  
 perspective, there is a need for an adjustment to the current                 
 discovery rules used by the Alaska courts.  There are isolated                
 incidents when the prosecution is not given adequate notice,                  
 especially in regard to expert witnesses.  He supports changing the           
 rule to require the defense to provide adequate notice of expert              
 witnesses and the nature of their testimony.  He expressed concern            
 that SB 10 may have unintended negative consequences for the                  
 Criminal Justice System.  He noted the playing field is not tilted            
 in favor of defendants because the State has more money to                    
 prosecute cases.  The discovery rule is one of the few areas where            
 the defense can evaluate the prosecution's case and make decisions.           
 Mr. Salemi felt Alaska has enormous resources at its disposal to              
 investigate crime and arrest people, and to prosecute them for                
 purported criminal acts.  He explained that the State of Alaska               
 system of justice is very tough on crime.  There has been a plea              
 bargaining ban for the past 20 years and Alaska has had the                   
 toughest mandatory sentencing laws in the country for the past 14 -           
 15 years.  He felt that despite the hostile environment for people            
 convicted, only six percent of mandatory sentence cases that are              
 prosecuted are tried; the other 94 percent result in guilty or no             
 contest pleas.  He felt that is a good statistical indication that            
 the system is working.  He stated most trials are straightforward             
 regarding who will be called to testify, and in many cases the                
 defense does not call any witnesses because the State has the                 
 burden of proof.  Mr. Salemi conceded that the prosecution has been           
 "ambushed" in cases, but that has occurred in a very small number             
 of cases.  The Public Defender Agency lawyers view the playing                
 field as fair and not tilted in favor of defendants.  Anyone can be           
 arrested and jailed whether guilty or not, therefore the defendant            
 should know what the case against him/her is about.                           
 Regarding the two-tiered system, Mr. Salemi stated in the first               
 tier, the defense would be allowed limited discovery; in the second           
 tier the defense would opt in but the exchange of information would           
 be reciprocal.  He explained that under Florida's system, the                 
 defense decides whether to give up the Fifth Amendment right, but             
 in SB 10, the defendant, with no legal training, would be required            
 to give up that right.  He said Public Defender clients do not                
 often trust their attorneys since they had no choice in hiring                
 them.  No other state requires the defendant to give up that                  
 constitutional right.  If this rule is revised, there will be a               
 percentage of cases in which discovery will be limited, preventing            
 the defense from fully evaluating the case.  This will increase the           
 likelihood that the defendant will make an erroneous decision which           
 will result in a trial case when they should have entered a plea              
 and cut their losses.  Mr. Salemi feared the rule change could                
 raise game playing in criminal prosecution cases to a higher level.           
 Mr. Salemi felt the prosecution should be entitled to more notice             
 and more information about proposed experts called by the defense             
 and they should be given notice of all affirmative and statutory              
 defenses the defense intends to use.  He also felt the names of               
 alibi witnesses should be provided to the prosecution.  Regarding             
 the fiscal impact on the Public Defender Agency, of the 13 offices,           
 5 do not have investigators.  If this bill passes, those offices              
 would need at least one investigator in each office.                          
 Number 496                                                                    
 SENATOR TAYLOR requested Mr. Salemi to send information to the                
 committee, prior to Wednesday, regarding the areas provided in the            
 bill that would create an improved working relationship between               
 prosecution and defense attorneys.  He also requested information             
 regarding mutually exclusive affirmative defenses.  He expressed              
 concern that the bill sets up a situation in which a defendant                
 would have to waive his/her Fifth Amendment right in order to                 
 receive what was previously ordered as normal discovery.  He wanted           
 to provide assurances that neither side would be entrapped in a               
 difficult position, nor did he want to set up a situation that                
 would be promptly appealed to the Supreme Court.                              
 Number 464                                                                    
 SENATOR TAYLOR announced a new work draft of SB 13 (DNA Evidence)             
 was completed by Mr. Chenoweth which would be discussed on                    
 The meeting ended at 2:37 p.m.                                                

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