HB 52: "An Act relating to the admissibility into evidence of deoxyribonucleic acid (DNA) profiles in civil and criminal proceedings; directing the Department of Public Safety to establish and maintain a DNA data bank and requiring DNA registration by persons convicted of felony offenses; 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 as it relates to DNA profile evidence; and amending Rules 401, 403, and 705 of the Alaska Rules of Evidence; and providing for an effective date."
00HOUSE BILL NO. 52 01 "An Act relating to the admissibility into evidence of deoxyribonucleic acid (DNA) 02 profiles in civil and criminal proceedings; directing the Department of Public 03 Safety to establish and maintain a DNA data bank and requiring DNA 04 registration by persons convicted of felony offenses; amending Rules 702(a) and 05 703 of the Alaska Rules of Evidence to modify the rule relating to the basis or 06 foundation for the admissibility of expert opinion testimony that is based on 07 scientific evidence as it relates to DNA profile evidence; and amending Rules 401, 08 403, and 705 of the Alaska Rules of Evidence; and providing for an effective 09 date." 10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 11 * Section 1. LEGISLATIVE FINDINGS AND STATEMENT OF PURPOSE. (a) The 12 legislature finds that 13 (1) recent developments in molecular biology and genetics have important 14 applications for forensic science; it has been scientifically established that there is a unique
01 pattern to the chemical structure of the deoxyribonucleic acid (DNA) contained in each cell 02 of the human body; the process for identifying this pattern is called "DNA identification"; 03 (2) the accuracy of identification provided by this method is superior to that 04 of any presently existing technique and recognizes the importance of this scientific 05 breakthrough in providing a reliable and accurate tool for the investigation and prosecution 06 of crimes; 07 (3) scientific evidence provides an increasingly critical source of information 08 in civil and criminal litigation; 09 (4) court decisions guiding the admissibility of scientific evidence in the state 10 courts impose a requirement on the introduction of expert scientific testimony that conditions 11 the introduction of that testimony on a degree of its validation within the community, that is, 12 to its general acceptance by experts in the relevant scientific field; under those court decisions, 13 trial courts are empowered to evaluate the quality of expert witnesses' opinions and to exclude 14 opinions that have not achieved general acceptance in the scientific community; 15 (5) the ability of a trial court to exclude opinion evidence that has not achieved 16 general acceptance in the scientific community may prohibit introduction and consideration 17 of evidence and testimony based on experimental scientific information that could be useful 18 to the trier of fact; and 19 (6) to better assure that relevant evidence based on emerging scientific 20 techniques and processes of debatable reliability may be considered, the "general acceptance" 21 principle for admissibility of scientific testimony should be replaced and a more flexible 22 approach to the use of opinion testimony should be adopted. 23 (b) In amending Alaska Rules of Evidence 702(a) and 703 in secs. 7 and 8 of this Act, 24 it is the purpose of the legislature to change the appropriate standard for the admissibility of 25 DNA evidence in civil and criminal proceedings. The legislature's amendment of this rule 26 would eliminate, as to DNA evidence, the principle of "general acceptance" underlying 27 scientific evidence as a precondition to the admissibility of scientific evidence in a criminal 28 or civil action, a principle first enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 29 1923) and adopted for the courts of this state in Pulakis v. State, 476 P.2d 474, 478 (Alaska 30 1970). In its place, the legislature opts to substitute the comparable rule applicable to the 31 introduction of scientific evidence in cases in the federal courts. That standard was announced
01 in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. --, 125 L.Ed.2d 469, 113 S.Ct. 02 2786 (1993). Under the Daubert standard, the reliability of scientific evidence is to be 03 determined based on the evidence's scientific validity without reference to the quality of 04 expert opinion, and without the qualifying condition that an expert opinion that has not 05 achieved general acceptance in the scientific community must be excluded. 06 * Sec. 2. AS 09.25 is amended by adding a new section to read: 07 Sec. 09.25.051. ADMISSIBILITY OF DNA PROFILES. (a) In a civil action 08 or proceeding, the evidence of a DNA profile is admissible to prove or disprove the 09 identity of a person. 10 (b) In this section, 11 (1) "deoxyribonucleic acid" means the molecules in all cellular forms 12 that contain genetic information in a patterned chemical structure for each individual; 13 (2) "DNA profile" means an analysis that uses the restriction fragment 14 length polymorphism analysis of deoxyribonucleic acid material in a human sample 15 of blood, semen, tissue, or other DNA-bearing cells resulting in the identification of 16 the individual's patterned chemical structure of genetic information. 17 * Sec. 3. AS 09.65 is amended by adding a new section to read: 18 Sec. 09.65.096. LIABILITY FOR ADMINISTRATION OF BLOOD TEST 19 FOR DNA SAMPLE. A person who, under AS 44.41.060(b), is authorized to draw 20 blood samples for purposes of DNA identification analysis, is not liable for civil 21 damage resulting from an act or omission arising out of the drawing of the blood 22 sample unless the act or omission constitutes gross negligence or reckless or intentional 23 misconduct. 24 * Sec. 4. AS 11.56.860(a) is amended to read: 25 (a) A person [WHO IS OR HAS BEEN A PUBLIC SERVANT] commits the 26 crime of misuse of confidential information 27 (1) if the person 28 (A) is or has been a public servant; 29 (B) [(1)] learns confidential information through employment 30 as a public servant; and 31 (C) [(2)] while in office or after leaving office, uses the
01 confidential information for personal gain or in a manner not connected with 02 the performance of official duties other than by giving sworn testimony or 03 evidence in a legal proceeding in conformity with a court order; or 04 (2) if the person, without authority, uses information that is made 05 confidential by AS 44.41.060 other than for a purpose authorized by AS 09.25.051, 06 AS 12.45.035, or AS 44.41.060. 07 * Sec. 5. AS 12.45 is amended by adding a new section to read: 08 Sec. 12.45.035. ADMISSIBILITY OF DNA PROFILES. (a) In a criminal 09 action or proceeding, the evidence of a DNA profile is admissible to prove or disprove 10 the identity of a person. 11 (b) In this section, 12 (1) "deoxyribonucleic acid" means the molecules in all cellular forms 13 that contain genetic information in a patterned chemical structure for each individual; 14 (2) "DNA profile" means an analysis that uses the restriction fragment 15 length polymorphism analysis of deoxyribonucleic acid material in a human sample 16 of blood, semen, tissue, or other DNA-bearing cells resulting in the identification of 17 the individual's patterned chemical structure of genetic information. 18 * Sec. 6. AS 44.41 is amended by adding a new section to read: 19 Sec. 44.41.060. DNA DATA BANK. (a) To support criminal justice services 20 in this state, the Department of Public Safety shall establish and maintain a 21 deoxyribonucleic acid (DNA) data bank. The DNA data bank shall be consistent with 22 the provisions of this section. 23 (b) A person convicted in this state of an offense that is a felony shall have 24 a blood sample drawn for purposes of DNA identification analysis. The blood sample 25 shall be drawn substantially in the following manner: 26 (1) a blood sample from a person 27 (A) who is to be incarcerated in a correctional facility shall be 28 drawn at the correctional facility at which the person is committed to the 29 custody of the commissioner of corrections, unless the Department of 30 Corrections designates another place; 31 (B) who, as a part of the person's sentence, is not to be
01 incarcerated in a correctional facility shall be drawn at a time and place 02 specified by the sentencing court; 03 (2) the blood sample may be taken only by a correctional health nurse 04 technician or a physician, registered professional nurse, licensed practical nurse, 05 graduate laboratory technician, or phlebotomist; 06 (3) chemically clean sterile disposable needles and vacuum draw tubes 07 shall be used for all samples; the tube shall be sealed and labeled with the subject's 08 name, social security number, date of birth, race, and sex, the name of the person 09 collecting the sample, and the date and place of collection; the vacuum draw tubes 10 shall be secured to prevent tampering with the contents; 11 (4) the vacuum draw tubes containing the samples shall be transported 12 to the location specified by the Department of Public Safety not later than 15 days 13 following withdrawal, and shall be analyzed and stored in the DNA data bank. 14 (c) The Department of Public Safety shall conduct the DNA identification 15 analysis in accordance with procedures that it has adopted to determine identification 16 characteristics specific to the individual whose sample is being analyzed. For each 17 vacuum draw tube received, the commissioner of public safety or the commissioner's 18 designated representative shall complete and maintain on file a form indicating the 19 name of the person whose sample is to be analyzed, the date and by whom the blood 20 sample was received and examined, and, if the seal on the vacuum draw tube had not 21 been broken or otherwise tampered with, a statement to that effect. The blood sample 22 may be divided, but, if divided, each part of the sample must be labeled as provided 23 for the original sample and securely stored by the department in accordance with 24 specific procedures to ensure the integrity and confidentiality of the samples adopted 25 by the department by regulation. 26 (d) A blood sample received by the Department of Public Safety under this 27 section may be used only 28 (1) to create a statistical data base, provided no identifying information 29 on the individual whose sample is being analyzed is included; or 30 (2) for retesting by the department to validate or update an original 31 DNA analysis prepared under this section.
01 (e) The Department of Public Safety shall prepare and maintain a report of the 02 results of a DNA identification analysis conducted by the department, including the 03 profile and identifying information. 04 (f) To assist in the investigation of a criminal offense, the Department of 05 Public Safety may make available the results of DNA identification characteristics 06 profiles of blood samples and the results of an analysis and comparison of the 07 identification characteristics from two or more blood samples to federal, state, and 08 local law enforcement officers upon request. A request may be made by personal 09 contact, mail, or electronic means. The department shall maintain on file the name of 10 the person making the request and the purpose for which the information is requested. 11 (g) At the request of a person who has been charged with an offense based in 12 whole or in part on the result of a search of information in the DNA data bank, the 13 Department of Public Safely shall furnish to the person a copy of the request for 14 search. If a sample or DNA profile supplied by the person making a request under 15 this subsection satisfactorily matches a profile in the DNA data bank, the department 16 shall confirm the existence of data in the DNA data bank or disseminate identifying 17 information from the DNA data bank. 18 (h) The Department of Public Safety 19 (1) shall create a separate statistical data base comprised of DNA 20 profiles of blood samples of persons whose identity is unknown; 21 (2) may share the information in the statistical data base with law 22 enforcement or criminal justice agencies in or outside the state. 23 (i) Except as specifically provided in (e) - (h) of this section, the results of a 24 DNA analysis are confidential. 25 (j) A person whose DNA profile has been included in the data bank may 26 request expungement of the DNA profile from the data bank if the felony conviction 27 on which the authority for including the DNA profile was based was reversed and 28 dismissed with prejudice to the right to renew the prosecution. The Department of 29 Public Safety shall purge all records and identifiable information in the data bank 30 pertaining to the person and destroy all samples from the person when the department 31 receives
01 (1) a written request for expungement under this section; and 02 (2) a certified copy of the court order reversing the conviction having 03 the effect of dismissing the case with prejudice. 04 (k) The Department of Public Safety 05 (1) may charge a reasonable fee to any authorized law enforcement 06 agency to search and provide a comparative analysis of DNA profiles in the data bank; 07 (2) shall adopt regulations establishing 08 (A) methods of obtaining information from the DNA data 09 bank; and 10 (B) procedures for verification of the identity and authority of 11 persons making requests for information from the data base; and 12 (3) shall specify the positions in the department that, as a necessary 13 function of the position, require regular access to the DNA data bank and samples 14 submitted. 15 * Sec. 7. Rule 702(a), Alaska Rules of Evidence, is amended to read: 16 (a) If scientific, technical, or other specialized knowledge will assist the trier 17 of fact to understand the evidence or to determine a fact in issue, a witness qualified 18 as an expert by knowledge, skill, experience, training, or education, may testify thereto 19 in the form of an opinion or otherwise. However, when expert testimony that is 20 based upon a scientific theory or technique is used to support the admission of 21 evidence of or based upon a deoxyribonucleic acid (DNA) profile, the court may 22 not admit the evidence if the court finds that the theory or technique in question 23 is scientifically valid for the purpose for which it is applied. 24 * Sec. 8. Rule 703, Alaska Rules of Evidence, is amended to read: 25 Rule 703. BASIS OF OPINION TESTIMONY BY EXPERTS. The facts or 26 data in the particular case upon which an expert bases an opinion or inference 27 (1) may be those perceived by or made known to the expert at or 28 before the hearing; 29 (2) [. FACTS OR DATA] need not be admissible in evidence; and 30 (3) [BUT] must be of a type reasonably relied upon by experts in the 31 particular field in forming opinions or inferences upon the subject; however, when
01 used to support the admission of evidence that is based on a deoxyribonucleic acid 02 (DNA) profile, the facts or data that relate to and support the expert opinion or 03 inference as to scientific knowledge need not be sufficiently established to have 04 become generally accepted in the particular field to which the facts or the data 05 belong. 06 * Sec. 9. DNA DATA BANK: APPLICABILITY OF SAMPLE REQUIREMENT TO 07 PERSONS PRESENTLY INCARCERATED. To the extent permitted by the United States 08 and state constitutions, a person who was convicted of a felony and, on the effective date of 09 this Act, is serving a term of imprisonment in a correctional facility in the state shall have a 10 blood sample drawn for the purposes of DNA identification analysis and storage in the DNA 11 data bank established by AS 44.41.060(a), added by sec. 6 of this Act. The sample shall be 12 drawn in the manner provided in AS 44.41.060(b), added by sec. 6 of this Act. 13 * Sec. 10. AS 09.25.051, added by sec. 2 of this Act, and AS 12.45.035, added by sec. 5 14 of this Act, have the effect of amending 15 (1) Rules 401 and 403, Alaska Rules of Evidence, by determining that, when 16 offered in civil and criminal actions and proceedings, DNA profile evidence has probative 17 value and that its probative value outweighs the danger of unfair prejudice; 18 (2) Rule 705, Alaska Rules of Evidence, by eliminating a requirement that the 19 court require or allow antecedent expert testimony concerning the reliability of DNA profiles 20 as a method of identification prior to its receipt into evidence in the action or proceeding. 21 * Sec. 11. This Act takes effect September 1, 1995.