Legislature(1995 - 1996)

02/10/1995 01:30 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE JUDICIARY COMMITTEE                                  
                       February 10, 1995                                       
                           1:30 p.m.                                           
  MEMBERS PRESENT                                                              
 Senator Robin Taylor, Chairman                                                
 Senator Lyda Green, Vice-Chairman                                             
 Senator Mike Miller                                                           
 Senator Al Adams                                                              
 Senator Johnny Ellis                                                          
  MEMBERS ABSENT                                                               
 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."                                           
  PREVIOUS SENATE COMMITTEE ACTION                                             
 SB 10 - See Judiciary minutes dated 2/1/95.                                   
     See Judiciary minutes dated 2/6/95.                                       
  WITNESS REGISTER                                                             
 Dean Guaneli                                                                  
 Assistant Attorney General                                                    
 Criminal Division                                                             
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, Alaska  99811-0300                                                    
 POSITION STATEMENT: Explained changes in CSSB 10                              
 ACTION NARRATIVE                                                              
 TAPE 95-6, SIDE A                                                             
 Number 001                                                                    
 SJUD - 2/10/95                                                                
               SB  10 CRIMINAL DISCOVERY RULES                               
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 1:40 p.m.  Senators Taylor, Green, Miller and Adams were             
 present.  SENATOR TAYLOR asked Dean Guaneli to testify on SB 10.              
 SENATOR ADAMS discussed the operating procedures of the committee.            
 He expressed concern that committee members did not have sufficient           
 time to review the latest committee substitute.  He also noted a              
 Judicial opinion would be coming out next week on this issue, and             
 he wanted to see how that opinion interfaces with the committee               
 substitute.  SENATOR TAYLOR noted the committee has checked with              
 the Court System at SENATOR ADAMS' request, and a special committee           
 of the Alaska Supreme Court will be reviewing this specific rule.             
 They will render a decision on February 17.  SENATOR TAYLOR agreed            
 that the committee should wait until that decision is made prior to           
 taking any action on the bill.  SENATOR TAYLOR stated he intended             
 to take testimony on the proposed CSSB 10 at this time to                     
 familiarize members with the committee substitute.                            
 Number 056                                                                    
 DEAN GUANELI, Assistant Attorney General, Department of Law,                  
 reviewed the proposed CSSB 10 (Work Draft G).  He explained in                
 civil litigation, the courts agree that fair and just results are             
 promoted by making certain information available to both the                  
 defense and prosecution in advance of trial.  This is not the                 
 practice in criminal litigation.  The defense has access to all of            
 the prosecution's case information, the prosecution knows little,             
 or nothing, about what the defense is going to present at trial.              
 This Rule of Court (16), which sets down rules of discovery in                
 criminal cases, was adopted by the Alaska Supreme Court under its             
 rulemaking authority, and was the result of the Scott case in 1974.           
 Other states have adopted rules of discovery which allow the                  
 prosecution access to some of the defense's records.   He noted               
 that in Alaska, jurors have been excused during trials because                
 he/she was familiar with a witness.                                           
 SENATOR ELLIS arrived at 1:45 p.m.                                            
 MR. GUANELI continued.  The intent is not to force the defendant to           
 give a deposition, as in a civil case, as that would force the                
 defendant to give up his/her Fifth Amendment Right.  However, when            
 the defense knows of alibi witnesses they intend to call at trial,            
 it would promote the interest of fair and just adjudications to               
 inform the prosecution in advance.  Currently the defense is                  
 required to inform the prosecution, prior to trial, if an alibi               
 defense is to be used, but the names of alibi witnesses do not have           
 to be disclosed.  CSSB 10 would provide the prosecution with                  
 advance notice of witnesses.  In other states with different rules            
 of court, the judge can require advance disclosure, but judges in             
 Alaska do not have that authority under the Alaska Constitution.              
 The Alaska Supreme Court decided that forcing a defendant to                  
 disclose the name of an alibi witness would be violating the                  
 defendant's right against self-incrimination.  To deal with some of           
 the unfairnesses in the system, CSSB 10 creates a hybrid system in            
 which the defendant could waive his/her rights under Scott vs.                
 State, by providing certain information to the prosecution, in                
 exchange for information provided by the prosecution which it is              
 not constitutionally obliged to provide.  The Alaska Supreme Court            
 could overrule the Scott Decision and amend Rule 16 to accomplish             
 the same end, but he was unsure whether the Legislature could                 
 require the Trial Courts to order something the Alaska Supreme                
 Court has denied.  The Criminal Rules Committee to the Alaska                 
 Supreme Court has not recommended changes supported by the Public             
 Defender Agency.  He explained the Supreme Court's options are  the           
 Criminal Rules Committee recommendation or the opt-in, opt-out                
 provision under consideration by the Legislature.                             
 MR. GUANELI informed committee members the Supreme Court would be             
 meeting next Friday (February 17) to consider the bill, but he was            
 unaware of any firm deadline for making a decision.                           
 Number 200                                                                    
 SENATOR TAYLOR noted the majority/minority reports on the Criminal            
 Rules Committee were distributed to members' offices for review.              
 He stated it was not his intention to hold the proposed CSSB 10 for           
 a lengthy amount of time until the Court rendered a position, but             
 to provide the opportunity for the Court to take action.                      
 Number 216                                                                    
 MR. GUANELI stated some of the same provisions recommended by the             
 Criminal Rules Committee are included in the proposed CSSB 10.  He            
 explained the opt-in, opt-out provision sets up a two-tiered system           
 for discovery.  The first tier provides the defense a fair amount             
 of information, more than is provided in federal court.  Without              
 opting in, the defense would be entitled to any exculpatory                   
 information, or information that might reduce the punishment, or              
 material submitted to the Grand Jury.  Grand Jury information is              
 not provided in the federal court system.  In Alaska, anytime                 
 anyone is charged with a felony offense, the case has to be                   
 presented to the Grand Jury.  Witness records would be available to           
 the defense, and they contain the names and testimony of primary              
 witnesses the state relied upon to obtain a Grand Jury indictment.            
 The defense would also have access to any evidence taken from a               
 defendant and prior witness statements after the witnesses testify.           
 If the defense wants more information, they would have to opt into            
 Tier Two, and they would have to provide information to the                   
 prosecution.  This method would eliminate surprise tactics during             
 MR. GUANELI discussed Subsection (h) on page 13 of the proposed               
 CSSB 10 (Jud) which deals with confidential records, and is a major           
 change to previous versions of SB 10.  He explained there are a               
 number of records the prosecution cannot get access to, but                   
 sometimes defense attornies want, including doctors' records,                 
 psychiatrists' records, police personnel records, and victim                  
 counselor records.  Defense attornies often make motions to the               
 court requesting access to such information.  Current court                   
 procedure allows the judge to review the records incamera, and to             
 decide what the defense should receive.  This provision sets                  
 standards for that practice.  Many judges routinely review                    
 confidential records and turn them over to the defense without                
 analyzing whether they ought to.  He has received a number of phone           
 calls from the Police Chief in Kodiak, Jack McDonald, who heads               
 the Alaska Police Standards Council.  Mr. McDonald is concerned               
 about the practice involving police personnel records which contain           
 all kinds of information that may not be relevant to a particular             
 case.  The defense attornies almost always have access to these               
 files without justification.  The Alaska Police Standards Council             
 feels this practice is inappropriate.  He has also received calls             
 from domestic violence advocates because judges routinely turn over           
 victim counselor records to the defense.  Two years ago, the                  
 Legislature passed a strongly worded privelege (AS 25.35) that says           
 victim counselors cannot be compelled to give testimony or records            
 in any proceeding.  It hampers the ability of the victim service              
 organizations to provide confidential services to victims.                    
 Number 298                                                                    
 SENATOR TAYLOR asked if those records end up in court when the                
 victim brings the case against someone for spousal abuse, or sexual           
 abuse of the children, etc.  He asked if that would prevent a                 
 person from getting evidence that could be used in their favor.               
 MR. GUANELI replied there are a number of exceptions to that                  
 privelege that cover child protective proceedings, or any kind of             
 crime that may have been committed by the victim.  If a civil suit            
 is going to be filed by a victim against a perpetrator, then that             
 information would come out.  In other circumstances, there is a               
 strong privelege set out in statute, and it seems inappropriate to            
 routinely be giving over those records without some kind of set               
 Number 315                                                                    
 SENATOR ADAMS stated the original version was unconstitutional.  He           
 asked Mr. Guaneli if the most recent version (Work Draft G) is a              
 constitutional bill with the opt-in provisions.  MR. GUANELI stated           
 he believed the original version adopted the federal rule of                  
 evidence which he did not believe would be unconstitutional.  The             
 federal rule of evidence is very limited, and with some exceptions,           
 disallows either side from getting anything.  He felt CSSB 10 to be           
 a constitutional way to accomplish the result.  A more preferable             
 way would be for the Alaska Supreme Court to do it independently.             
 Number 331                                                                    
 SENATOR TAYLOR asked if there was a requirement for the defense in            
 the O.J. Simpson case to produce a list of witnesses.  MR. GUANELI            
 replied he did not know whether there is a rule in California                 
 similar to this rule, but there was a pretrial order in that case.            
 SENATOR TAYLOR stated that would not occur in Alaska because the              
 defense is not obligated to provide that information.                         
 Number 340                                                                    
 SENATOR ADAMS noted that he had hoped a judicial opinion on the               
 proposed CSSB 10 would have been provided, but the minority members           
 would not mind the adoption of the Work Draft G version of CSSB 10,           
 in order to use it as a working document.                                     
 SENATOR MILLER moved the adoption of the CSSB 10 (Jud) (Work Draft            
 G) in lieu of the original bill. There being no objection, so                 
 SENATOR TAYLOR stated this bill will need a two-thirds vote to pass           
 the Legislature.  He wants to ensure the bill is constitutional and           
 defensible before it leaves the committee.  He plans to give the              
 Court System time to review the legislation, and if they do not               
 take independent action, the bill will be rescheduled in committee.           
 SENATOR TAYLOR adjourned the meeting at 2:05 p.m.                             

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