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