04/04/2012 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB180 | |
| SB134 | |
| SB218 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | SB 180 | TELECONFERENCED | |
| += | SB 218 | TELECONFERENCED | |
| += | SB 134 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 4, 2012
1:35 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Joe Paskvan
Senator John Coghill
MEMBERS ABSENT
Senator Lesil McGuire
COMMITTEE CALENDAR
CONFIRMATION HEARINGS
Alaska Bar Association
- CANCELED
SENATE BILL NO. 180
"An Act directing the Department of Transportation and Public
Facilities to develop and implement standards and operating
procedures allowing for the use in the construction and
maintenance of transportation projects and public facilities and
in the construction of projects by public and private entities
of gravel or aggregate materials that contain a limited amount
of naturally occurring asbestos, and authorizing use on an
interim basis of those materials for certain transportation
projects and public facilities; relating to certain claims
arising out of or in connection with the use of gravel or
aggregate materials containing a limited amount of naturally
occurring asbestos; and providing for an effective date."
- MOVED CSSB 180(JUD) OUT OF COMMITTEE
SENATE BILL NO. 134
"An Act relating to child support awards; and repealing Rule
90.3, Alaska Rules of Civil Procedure."
- HEARD & HELD
SENATE BILL NO. 218
"An Act relating to conspiracy to commit human trafficking in
the first degree or sex trafficking in the first degree;
relating to the crime of furnishing indecent material to minors,
the crime of online enticement of a minor, the crime of
prostitution, and the crime of sex trafficking; relating to
forfeiture of property used in prostitution offenses; relating
to sex offender registration; relating to testimony by video
conference; adding Rule 38.3, Alaska Rules of Criminal
Procedure; and providing for an effective date."
- HEARD & HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 180
SHORT TITLE: NATURALLY OCCURRING ASBESTOS IN GRAVEL
SPONSOR(s): SENATOR(s) OLSON
01/27/12 (S) READ THE FIRST TIME - REFERRALS
01/27/12 (S) TRA, JUD
02/23/12 (S) TRA AT 1:00 PM BUTROVICH 205
02/23/12 (S) Moved CSSB 180(TRA) Out of Committee
02/23/12 (S) MINUTE(TRA)
02/24/12 (S) TRA RPT CS 3DP NEW TITLE
02/24/12 (S) DP: KOOKESH, MENARD, THOMAS
02/24/12 (S) FIN REFERRAL ADDED AFTER JUD
03/12/12 (S) JUD AT 12:30 AM BELTZ 105 (TSBldg)
03/12/12 (S) Heard & Held
03/12/12 (S) MINUTE(JUD)
03/23/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/23/12 (S) Heard & Held
03/23/12 (S) MINUTE(JUD)
04/02/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
04/02/12 (S) Heard & Held
04/02/12 (S) MINUTE(JUD)
04/04/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 134
SHORT TITLE: CHILD SUPPORT AWARDS
SPONSOR(s): KOOKESH
01/17/12 (S) PREFILE RELEASED 1/6/12
01/17/12 (S) READ THE FIRST TIME - REFERRALS
01/17/12 (S) HSS, JUD
02/06/12 (S) HSS AT 1:30 PM BELTZ 105 (TSBldg)
02/06/12 (S) Heard & Held
02/06/12 (S) MINUTE(HSS)
02/15/12 (S) HSS AT 1:30 PM BUTROVICH 205
02/15/12 (S) Moved CSSB 134(HSS) Out of Committee
02/15/12 (S) MINUTE(HSS)
02/17/12 (S) HSS RPT CS 2DP 2NR NEW TITLE
02/17/12 (S) DP: DAVIS, EGAN
02/17/12 (S) NR: MEYER, DYSON
02/17/12 (S) FIN REFERRAL ADDED AFTER JUD
03/07/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/07/12 (S) Heard & Held
03/07/12 (S) MINUTE(JUD)
04/04/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
BILL: SB 218
SHORT TITLE: SEX CRIMES; TESTIMONY BY VIDEO CONFERENCE
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/22/12 (S) READ THE FIRST TIME - REFERRALS
02/22/12 (S) JUD, FIN
02/29/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/29/12 (S) Heard & Held
02/29/12 (S) MINUTE(JUD)
03/16/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
03/16/12 (S) Scheduled But Not Heard
04/04/12 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
WITNESS REGISTER
ALLEN BAILEY, representing himself
Anchorage, AK
POSITION STATEMENT: Testified on SB 134 and expressed concern
about potentially disregarding 25 years of case law on
calculating child support.
RHONDA BUTTERFIELD, representing herself
Anchorage, AK
POSITION STATEMENT: Testified on SB 134 and expressed concern
about potentially disregarding 25 years of case law on
calculating child support.
MICHAEL SHAFFER, representing himself
Anchorage, AK
POSITION STATEMENT: Testified on SB 134 and expressed concern
about potentially disregarding 25 years of case law on
calculating child support.
DOROTHEA AGUERO, attorney representing herself
Anchorage, AK
POSITION STATEMENT: Testified on SB 134 and expressed concern
about potentially disregarding 25 years of case law on
calculating child support.
DORTHY SHOCKLEY, staff
Senator Albert Kookesh
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Provided information on SB 134 on behalf of
the sponsor.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law (DOL)
Juneau, AK
POSITION STATEMENT: Provided a sectional analysis for SB 218.
NANCY MEADE, General Counsel
Alaska Court System
Anchorage, AK
POSITION STATEMENT: Commented on video conferencing witness
testimony as it pertains to SB 218.
ACTION NARRATIVE
1:35:34 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:35 p.m. Present at the call to
order were Senators Paskvan, Wielechowski, and Chair French.
Senator Coghill arrived soon thereafter.
SB 180-NATURALLY OCCURRING ASBESTOS IN GRAVEL
1:36:06 PM
CHAIR FRENCH announced the consideration of SB 180, "An Act
directing the Department of Transportation and Public Facilities
to develop and implement standards and operating procedures
allowing for the use in the construction and maintenance of
transportation projects and public facilities and in the
construction of projects by public and private entities of
gravel or aggregate materials that contain a limited amount of
naturally occurring asbestos, and authorizing use on an interim
basis of those materials for certain transportation projects and
public facilities; relating to certain claims arising out of or
in connection with the use of gravel or aggregate materials
containing a limited amount of naturally occurring asbestos; and
providing for an effective date." He stated that the committee
heard extensive testimony during previous hearings from the
Department of Transportation and Public Facilities, the state
epidemiologist and the Department of Law (DOL). His view was
that the committee did what it could to balance the need for
development with the health risks of using naturally occurring
asbestos. Finding no further committee discussion, he asked for
a motion.
1:36:50 PM
SENATOR WIELECHOWSKI moved to report CS for SB 180, version X,
from committee with individual recommendations and attached
fiscal note(s).
CHAIR FRENCH announced that without objection, CSSB 180(JUD)
moved from the Senate Judiciary Standing Committee.
1:37:03 PM
At ease.
SB 134-CHILD SUPPORT AWARDS
1:38:14 PM
CHAIR FRENCH announced the consideration of SB 134, "An Act
relating to child support awards; and repealing Rule 90.3,
Alaska Rules of Civil Procedure." He relayed that he asked the
bar association to solicit input on the bill from family law
practitioners so the emails and statements that committee
members have received from practitioners came at his
instigation.
1:39:16 PM
SENATOR COGHILL joined the committee.
ALLEN BAILEY, family law attorney representing himself,
Anchorage, AK, said his clients tend to be victims of domestic
violence and many are in the lower income bracket. He said he
did not have a preference about placing Court Rule 90.3 in
statute or not. However, it would be a serious loss to adopt an
entirely new method. It would have neither the 25-year history
with the courts nor the legislative history and commentary that
Civil Rule 90.3 has.
He said the concerns the sponsor's staff raised in a letter
commenting on Civil Rule 90.3 could not occur under current law
to child support payors in Alaska. He opined that it should not
be the duty of the court or CSSD to adjust reality for abusive
people they do not have the financial income to support their
irresponsible behaviors. People sometimes undergo financial
reversals, but there are ways to deal with that problem under
current law. He urged the committee to take time with the bill.
1:45:36 PM
RHONDA BUTTERFIELD, family law attorney representing herself,
Anchorage, AK, said 20 percent of her caseload is exclusively
child support and 86 percent involves child support issues. She
expressed concern that the bill would fundamentally change how
child support is calculated and upheave 25 years of case law.
She suggested that if the Legislature wants to place the child
support rule into statute, it should adopt it in full along with
the commentary and case law. The system may have weaknesses, but
there are more serious issues than changing to an income share
model. For example, the unemployed need temporary relief from
their child support obligations. She also pointed out that it
would be difficult for people to get relief from child support
problems when the Legislature is not in session.
MS. BUTTERFIELD said she believes that the Department of Revenue
understated the number of child support orders that would be
subject to modification. After listening to an administrative
law judge speak on the topic, she understood that CSSD has
58,000 child support cases, yet their fiscal note says only
20,000 would be eligible for modification. Her experience is
that most child support orders involve primary physical custody
by one parent so all of those cases would be subject to
modification. She suggested the committee go slowly and look
carefully before taking action on the bill. She said she would
submit additional comments in writing.
1:52:46 PM
MICHAEL SHAFFER, family law attorney representing himself, said
he represents primarily victims of domestic violence and sexual
assault. He echoed the comments of the previous practitioners
and described the bill as profoundly flawed. Although the
calculation is based on the Washington model, it does not
consider the costs directly associated with child rearing. That
significant problem will create a tremendous amount of
additional litigation between custodial and non-custodial
parents. It will make things worse for the custodial parent in
primary custody situations as the income disparity increases.
This is often the mother. Although Court Rule 90.3 is not
perfect, the court acts like a regulatory agency with a rule
change process and it has the most expertise in child custody
and child support.
MR. SHAFFER opined that every parent who thinks they can
reassess their support payment through the new method will
apply. His experience is that very few obligor parents pay
voluntarily; more often, it is through mandatory garnishments.
The bill will have an overall harmful impact to children,
particularly those in the care of a low-income custodial parent.
It will secondarily be harmful to custodial parents and will
benefit non-custodial parents who want to pay less in child
support. That is not and should not be the purpose of the law.
He urged the committee to move cautiously and solicit input from
experts and practitioners in the field before changing the
calculation method.
1:59:49 PM
CHAIR FRENCH noted that Mr. Shaffer was careful to clarify that
he was representing himself, not his employer.
DOROTHEA AGUERO, family law attorney representing herself,
Anchorage, AK, echoed the comments of the previous testifiers.
She said a number of practitioners articulated concern at the
section meeting yesterday that they had not had the opportunity
to provide input on the bill. The impetus for the bill appears
to have come from constituent complaints about fairness of the
current rule and the concerns articulated in Ms. Shockley's
letter to Beth Adams from the Alaska Court System. She agreed
with the previous testimony about consulting experts and
practitioners in the field before making such sweeping changes.
MS. AGUERO said many of her former clients will want to modify
their child support orders if the definition of shared custody
is changed. Considering a parent's expenses may require
extensive evidentiary hearings, which will burden the court
system and cost clients more in attorney's fees. It also appears
that lower income parents will actually pay more under the
proposed changes. Another concern is that the bill disregards
the commentary in Court Rule 90.3 and will result in the
potential loss of 25 years of case law. She urged more
deliberate thought and input before making any changes.
2:06:18 PM
CHAIR FRENCH closed public testimony.
2:06:29 PM
DORTHY SHOCKLEY, staff to Senator Albert Kookesh, sponsor of SB
134, stated that the bill puts Civil Rule 90.3 into statute and
changes the formula for calculating child support. She reviewed
the sponsor statement and told the committee that she followed
the entire rule review process four years ago. The court
solicited comments, but made limited changes. The statewide
teleconference to comment on the changes received little input.
She recalled that just five people commented in the allotted
half hour. She found the process disappointing and asked how to
change it. An attorney who sat on two of the review committees
suggested that putting the rule in statute would give people
more voice. Another suggestion was to change to a shared income
model.
MS. SHOCKLEY directed attention to the updated Legislative
Research Report in the packet. Twenty-six states have child
support in statute, six states use court rule, and others use a
combination. Thirty-seven states use the income share model.
Responding to previous questions, she confirmed that the
economic table contained in the bill did came from the
Washington model. The Department of Labor and Workforce
Development (DOLWD) indicated what a table specific to Alaska
was not essential because its purpose is to indicate how much a
person at various income levels can afford to support a child or
children. If the bill passes, nonmonetary considerations and the
question of a statute of limitations could be considered. She
concluded that the bill addresses the fairness issue and that
people do not feel they have a voice.
2:15:18 PM
SENATOR COGHILL asked if the percent of income model could be
modified since the income share model did not have case history
in Alaska.
MS. SHOCKLEY said the bill initially did not change the
calculation. The decision to change to the income share model
was based on what most other states are doing. People that have
called the sponsor's office support that change. She
acknowledged that the fiscal notes were daunting.
2:18:46 PM
CHAIR FRENCH held SB 134 in committee for further consideration.
SB 218-SEX CRIMES; TESTIMONY BY VIDEO CONFERENCE
2:18:59 PM
CHAIR FRENCH announced the consideration of SB 218, "An Act
relating to conspiracy to commit human trafficking in the first
degree or sex trafficking in the first degree; relating to the
crime of furnishing indecent material to minors, the crime of
online enticement of a minor, the crime of prostitution, and the
crime of sex trafficking; relating to forfeiture of property
used in prostitution offenses; relating to sex offender
registration; relating to testimony by video conference; adding
Rule 38.3, Alaska Rules of Criminal Procedure; and providing for
an effective date." He asked for a motion to adopt version B
committee substitute (CS).
SENATOR WIELECHOWSKI moved to adopt the work draft CS for SB
218, labeled 27-GS2627\B, as the working document.
2:19:35 PM
ANNE CARPENETI, Assistant Attorney General representing the
Criminal Division, Department of Law (DOL), provided a sectional
analysis.
Sections 1-16 generally raise the threshold amounts for theft in
the second, third, and fourth degrees to a higher level. For
example, a person commits theft in the second if a person takes
property or services valued at $500 or more but less than
$25,000. SB 218 would change the threshold amount to $1,500 or
more but less than $25,000. Second-degree theft is a class C
felony. The threshold values for theft in the third degree would
change from $50 or more but less than $500 to $250 or more but
less than $1,500. Theft in the third degree is a class A
misdemeanor. Current law provides that it is theft in the fourth
degree if a person takes property or services valued at $50 or
more. The bill raises the threshold amount to $250 or more up to
$1,500. Theft in the fourth degree is a class B misdemeanor.
CHAIR FRENCH recalled that class B misdemeanor penalties provide
90 days in jail. He asked the amount of the fine.
MS. CARPENETI said she would look it up. She continued to
explain that the bill changes those threshold amounts in other
theft-related crimes. She listed concealment of merchandise,
removal of identification marks, unlawful possession, issuing a
bad check, fraudulent use of an access device, vehicle theft.
Section 9 deals with prior convictions. Second, third, and
fourth degree theft each has a provision that increases the
penalty one level if a person commits a lower level of theft and
the person has two prior theft convictions within the previous
five years. The bill also changes the values related to the
penalty for criminal mischief in the third, fourth, and fifth
degrees.
2:22:30 PM
CHAIR FRENCH asked if criminal mischief is generally the
destruction of somebody else's property.
MS. CARPENETI said yes. She continued to explain that the
changes in the bill would also apply to the crimes of criminal
simulation, misapplication of property, and defrauding
creditors.
2:24:20 PM
CHAIR FRENCH asked if the department had taken a position on the
idea of Senator Coghill's [to increase the threshold values for
theft.]
MS. CARPENETI said no.
SENATOR WIELECHOWSKI questioned why DOL had not taken a
position.
MS. CARPENETI explained that it would be awkward for DOL to take
a position when it was prosecuting people for crimes under the
law as currently written.
SENATOR WIELECHOWSKI expressed a desire to hear the
administration's position.
2:25:42 PM
CHAIR FRENCH asked Ms. Carpeneti to work on getting a response
from the department that was something more than "no position."
MS. CARPENETI referenced an earlier question and relayed that a
class B misdemeanor carries a maximum fine of $2,000. A class A
misdemeanor carries a maximum fine of $10,000.
CHAIR FRENCH recapped that the penalty for a class B misdemeanor
is 90 days in jail and a maximum fine of $2,000. The penalty for
a class A misdemeanor is one year in jail and a maximum fine of
$10,000. The penalty for a class C felony is 5 years in jail and
a maximum fine of $50,000.
2:27:01 PM
MS. CARPENETI added that the penalty for a class B [felony] is
10 years in jail and a maximum fine of $100,000.
Section 17 amends the elements of the crime of distribution of
indecent materials to minors. This is in response to a finding
by a federal district court judge that this law is
constitutionally overbroad. The proposal is to require the state
to prove that the defendant intentionally and knowingly
distributed, or possessed with intent to distribute, prohibited
material to a person that the defendant knows is a child under
age 16 or believes to be a child under age 16.
CHAIR FRENCH asked if the key change is the insertion of the
word "intentionally" on page 8, line 8.
MS. CARPENETI replied the key words are "intentionally" and
"knows" on page 8, lines 8 and 11. A person intentionally
distributes prohibited material and knows it is to a child who
is under 16 years of age.
CHAIR FRENCH commented that it is hammering the mental state of
the offender.
MS. CARPENETI agreed. She noted that the American Civil
Liberties Union (ACLU) had testified on various provisions of
the bill, but had not raised concerns about this particular
change.
Sections 18-20 contain provisions of SB 186. These statutes need
to be change in response to the Blakely and Apprendi decisions.
Under the law, a person who is found guilty but mentally ill may
not be released from incarceration until the person is
determined not to be a danger to him or herself or the public.
That may mean that the person would not qualify for mandatory
parole, which effectively raises the possible penalty for that
person. Under Blakely and Apprendi, the decision of whether a
person is guilty but mentally ill must be made by the jury or
the court and that finding must be made by proof beyond a
reasonable doubt.
Section 21 is a new provision. It allows a witness in a
competency hearing to testify by contemporaneous two-way video
teleconference if the court finds that the witness would have to
travel to the hearing by air and that the procedure is fair to
the parties. Although the confrontation clause generally applies
to trial procedures, DOL believes the competency hearing is
enough different that it is justifiable. Competency is decided
by a judge, the burden of proof is by a preponderance of the
evidence, and the burden is placed on the party that raises the
issue. That is generally the defendant.
2:31:06 PM
CHAIR FRENCH asked if this had been tried in Alaska.
MS. CARPENETI said no; it is new law that will likely be
challenged. However, DOL believes it is on solid ground under
the circumstances of competency hearings held in rural areas.
Section 22 changes the general rule about preponderance of the
evidence as the burden of proof to reflect the changes since
Blakely and Apprendi.
Sections 23 and 24 add provisions to ensure that there is mutual
agreement about changing the terms of an Alaska Rules of
Criminal Procedure Rule 11 agreement after it has been imposed.
If a defendant, as part of a Rule 11 plea agreement, agrees to a
particular period of probation, the court may not reduce the
period of probation without the consent of the prosecution.
[This effectively overrules the decision in State v. Henry, 240
P. 3d 846.] The court still has to apply the Chaney criteria in
deciding how much suspended time to impose for the violation of
probation, but unless the parties agree, the court cannot reduce
the period of probation that was agreed upon for sentencing.
2:33:14 PM
CHAIR FRENCH mentioned the recent U.S. Supreme Court decision
that had to do with the assistance of counsel in plea
agreements. He did not recall that it touched on changing terms
of a plea agreement.
MS. CARPENETI responded that this would reverse the decision in
State v. Henry, which allowed the judge in a negotiated plea to
reduce the term of probation. She said it is DOL's position that
the parties should abide by the terms of a plea bargain and one
party should not be able to make a unilateral reduction in the
terms.
Section 25 is a conforming amendment to reflect the Blakely and
Apprendi decisions. It amends the sentencing law for murder in
the first degree to change the burden of proof that the
defendant subjected the victim to substantial physical torture
or that the defendant was a peace officer who used their
authority to facilitate the murder. Current statute provides for
a clear and convincing burden on the prosecution and now the
state must prove these factors beyond a reasonable doubt.
Section 26 clarifies that if a sentence is imposed that would
preclude the defendant from receiving good time, the jury must
determine the factual issue. For example, if a person has been
convicted of first-degree murder of a peace officer, the jury
must determine the factual issue that the victim was a peace
officer beyond a reasonable doubt. In addition, if a court is
sentencing a person who is subject to a presumptive range and
the prosecution seeks to increase the range by proof of certain
aggravating factors, the jury must determine the factual issue
by proof beyond a reasonable doubt. She confirmed that this also
comes from the Blakely and Apprendi decisions.
Section 27 adds new subsections to AS 12.55.155. Subsection (i)
deals with the aggravating factor under AS 12.55.155(c)(10) that
the defendant's conduct was the most serious in the definition
of that offense. In that circumstance, the court may raise the
sentence above the sentencing range for that class of offense.
The facts of the offense that might justify the finding have to
be found by the jury beyond a reasonable doubt. Then the legal
conclusion that that conduct is the most serious in the range of
that offense ought to be decided by the judge.
Subsection (j) says that once a factor in aggravation has been
found according to law, the court is allowed to sentence the
person up to the maximum term of imprisonment. If it is a prior
offense, the finding can be made by the judge. Additional
factors in aggravation do not need to be determined by the jury,
but can be found as mitigating factors by the trial judge by
clear and convincing evidence.
CHAIR FRENCH summarized that it is necessary to prove at least
one aggravator to the jury beyond a reasonable doubt. Additional
aggravators fall under the clear and convincing standard.
MS. CARPENETI clarified that, in this particular case, the first
aggravator may not have to be found by the jury, because one of
the aggravating factors is five or more prior offenses. The
courts have found that those have already been found by a jury
beyond a reasonable doubt.
2:38:54 PM
SENATOR COGHILL asked where Blakely applies.
MS. CARPENETI explained that the Blakely and Apprendi decisions
say that if a fact could raise the maximum penalty for a crime,
the fact finder must make that determination beyond a reasonable
doubt. If a prior conviction has already been found by a jury
beyond a reasonable doubt, it is not necessary to go to the jury
again to make a subsequent finding.
SENATOR COGHILL asked if the Blakely and Apprendi decisions
allow the judge to apply aggravators.
MS. CARPENETI said yes; the jury has already made the
determination or the court has already found another aggravating
factor.
Sections 28 and 29 are conforming to the provisions in Sections
23 and 24 that say the court cannot change the terms of a
negotiated plea without the consent of all parties.
Section 30 adds a rule to the Alaska Rules of Criminal Procedure
to address the use of testimony by contemporaneous two-way video
conference in a trial. It is much more limited than the
procedure in the bill for competency hearings, because of the
Sixth Amendment right to confront and cross examine witnesses.
This rule follows the guidelines in Maryland v. Craig, which
approved remote testimony of a child. The requirements are that
important public policy must support the use of the remote
testimony, the witness is unavailable, and the testimony is
subject to cross examination and given under oath. This has been
upheld by the U.S. Supreme Court and the Second Circuit Court of
Appeals.
2:42:06 PM
CHAIR FRENCH highlighted Justice Scalia's extremely powerful
dissent and suggested members read that before taking final
action on that aspect of the bill.
MS. CARPENETI pointed out that Alaska's procedure for children,
AS 12.45.046, is similar to the procedure that Maryland v. Craig
upheld. The Alaska Court of Appeals has also upheld the
procedure.
2:43:22 PM
SENATOR PASKVAN referenced the phrase "as if the witness were
sitting in the courtroom's witness stand." on page 13, line 30.
He asked if that requires the camera literally to be there.
MS. CARPENETI replied the camera has to be where the witness is.
To make this as close to face-to-face as possible, the witness
has to be able to see everybody in the courtroom and everybody,
including the public, has to be able to see the witness. This is
not a child proceeding and will probably be used infrequently.
SENATOR PASKVAN read line 29 and commented that multiple screens
may be needed.
MS. CARPENETI said it is a good point and she may offer a
suggestion.
SENATOR PASKVAN stressed the importance of "getting it right"
since it is part of the confrontation clause.
CHAIR FRENCH confirmed that the cases are clear that it is more
than just the verbal testimony of a witness. It is the witness's
coloring, perspiring, body language and other visual "tells."
2:47:39 PM
MS. CARPENETI said Section 31 notices there is an indirect court
rule amendment in Section 26.
Sections 32-34 include applicability provisions, conditional
effect of the court rule change, and the effective date of July
1, 2012.
SENATOR PASKVAN referred to Section 30 and asked how defense
counsel could submit a document to a remote witness without
tipping their hand ahead of time.
MS. CARPENETI said she suspects that the video technician would
hand it to the witness at the appropriate time.
SENATOR PASKVAN commented on the potentially confidential nature
of these documents.
MS. CARPENETI pointed out that the bill provides that the trial
court will establish procedures for taking the testimony. She
acknowledged that the court would have to consider how to do
this fairly and efficiently.
2:51:56 PM
CHAIR FRENCH noted that Mafia boss Vincent "The Chin" Gigante
challenged the judge for allowing two-way video testimony in his
trial. The judge ordered it based on his inherent power under
federal Criminal Rule 2 and 57(b). He asked if Alaska has
similar rules of evidence.
MS. CARPENETI said there are parallels in Alaska law and the
court could arguably do it now in its inherent power. However,
DOL believes it would be better to have a rule that follows what
the U.S. Supreme Court set out.
CHAIR FRENCH asked how she would address the slippery slope
argument that allowing remote testimony in one trial will make
it more difficult to disallow others.
MS. CARPENETI said the witness has to be unavailable as defined
under the civil and criminal court rules. The standard is clear
and convincing evidence and the circumstances are limited. She
reiterated her expectation that this would not be broadly used.
CHAIR FRENCH said he would like to hear from the Court System on
this point to understand the implied financial obligation.
2:54:37 PM
NANCY MEADE, General Counsel, Alaska Court System, stated that
the court submitted a zero fiscal note with the understanding
that the bill would not impose a requirement to install any
video conferencing system. However, the court generally would
like to move toward more video conferencing. She stated that the
court does not have an opinion on video conferencing permitted
under the bill but it does have some capacity for video
conferences. She did not know if the court has the specific
ability to allow the witness to see three different places at
once as this rule would call for, but it is conceivable that
some courts will have good high quality video equipment in the
future. It may be available in some locations already.
CHAIR FRENCH asked if her position is that it would be the
obligation of the state to provide the equipment.
2:56:23 PM
MS. MEADE said she had not given it complete thought but the
court is working to increase video capabilities.
CHAIR FRENCH asked the number of superior courtrooms in the
state.
MS. MEADE replied there are about 45 court locations, and she
would follow up on the specific number of courtrooms.
2:57:44 PM
[CHAIR FRENCH held SB 218 in committee.]
2:57:49 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 2:57 p.m.
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