Legislature(1995 - 1996)
01/25/1995 01:05 PM House JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJUD - 1/25/95
HB 26 - DEPOSITIONS IN CRIMINAL CASES
CHAIRMAN PORTER then announced HB 26 would be the next bill before
the committee.
REPRESENTATIVE VEZEY left early.
Number 725
REPRESENTATIVE TOOHEY asked if she could make a motion to make
Version C the committee's work draft.
Number 730
CHAIRMAN PORTER asked if there was objection. Hearing none, the
committee substitute was adopted.
REPRESENTATIVE PARNELL, sponsor of the bill, came before the
committee. He said under the current rule 15, the court can order
depositions in a criminal case upon good cause being shown. That
is a weak standard and permits the taking of numerous depositions
in cases where the victim can be subjected to harassment of the
defense. It is ripe for abuse, at that point. He read part of a
speech by Ed McNally to sum up his reason for proposing the bill:
The Alaska Rule 15 is far more liberal (referring to the federal
rule 15), permitting a deposition of any victim or witness whenever
good cause is shown. In the practice of the criminal courts in
Alaska, Alaska Criminal Rule 15 has become a tool of aggressive
harassment of witnesses, victims, and especially rape victims in
criminal cases. The Victims Rights Act says that in advance of
trial, rape victims do not have to talk to the lawyer for the man
who raped them. Within Alaska, Criminal Rule 15 is routinely used
by defense counsel to obtain a court order requiring rape victims
to submit to a grueling and formal deposition with them. Under the
Federal Rule 15, it says that depositions can be taken only under
exceptional circumstances, rather than "good cause shown"
standards. His first draft of the bill was strictly the federal
rule. After discussions with the Department of Law, he backed off
from that and submitted the committee substitute, Version C, which
provides a standard very similar to the federal rule with respect
to this special circumstances test. In the first portion, it says
that the deposition of a prospective witness may be taken by either
party upon notice as provided in B of this rule; if the court finds
by clear and convincing evidence that, one, the witness will not be
present to testify at trial, or two, due to exceptional
circumstances, the deposition is necessary to prevent a failure of
justice. Essentially, what we are doing at the Department of Law's
suggestion, is changing a portion of the Alaska rule. We are not
throwing out the entire rule and all the cases that have come in
under the rule. We are just changing the standard under which
depositions can be taken.
REPRESENTATIVE PARNELL went on to say that on page 2 of the work
draft, Section 2 changes the rule so that courts will preside over
depositions as well. This is done to give them some measure of
control over the proceedings. In short, changing the wording of
the Alaska rule to be parallel to the federal rule, is a warranted
change, given the current use of depositions and abuse of
depositions. He urged the committee's support of HB 26.
Number 790
CHAIRMAN PORTER asked if there were questions of the sponsor.
Hearing none, he then requested Mr. Guaneli to come forward to
testify.
Number 795
MR. GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW, stated that often times in a criminal case, a
rape victim has given a statement to doctors at the hospital, has
given a statement to the police which is recorded and transcribed,
has given a statement to the Grand Jury, which is recorded and
transcribed, and all that information goes to the defense. Many
times, if the defense can in some way find out the victim is not
going to cooperate, or does not want to testify, the case may
simply go away. Mr. Guaneli made it clear that he was not
suggesting that defense attorneys ask for depositions to
intentionally intimidate victims, but that is the effect of it.
Getting in a small enclosed room, sitting across from the man who
raped you is a terrifying experience. There is no judge present,
there is just a court reporter who has another tape recorder going,
and that statement is then recorded and transcribed. Throughout
each of these statements, subtle details of the defense may change.
Every time there is an additional statement taken, it is additional
evidence that can be used against the victim as cross examination
material.
MR. GUANELI went on to say that in criminal cases, unlike civil
cases, the defense already gets a large amount of material to know
about the prosecution's case. For that reason, historically,
depositions have not occurred in criminal cases. Unfortunately,
some judges in Alaska, not all of them by any means, but some, have
been very loose about allowing depositions in criminal cases,
particularly in rape cases. This bill is intended to clamp down on
that practice. If there is a good reason why a deposition ought to
be taken, if the witness is dying or is going to be leaving the
state, or if there are exceptional circumstances, but for it to be
a routine practice seems inappropriate.
MR. GUANELI said the other change occurs on page 2, Section 2.
This bill says that if a judge is going to order a deposition, let
the judge preside over that deposition. It should be done in a
courtroom, in a closed proceeding with a measure of decorum, so the
judge can protect that witness against an aggressive cross
examination. In a criminal case, the prosecutor is not really the
victim's lawyer. Victims often do not have the money to go out and
hire a lawyer to protect them. In a normal deposition, the other
attorney can raise legal objections, but the witness has to answer
the questions. It is a good and helpful procedure to have the
judge preside over that, in the rare circumstance that it should be
necessary.
Number 843
REPRESENTATIVE BUNDE asked if we would end up with a bottleneck,
just because we do not have enough courtrooms available.
Number 845
MR. GUANELI said it depends on how many of these are ordered by the
judges, but he thought this should be a rare occurrence. It does
not take up a lot of court time. It may advance the course of
litigation, rather than delaying things.
Number 849
REPRESENTATIVE FINKELSTEIN was not clear on the necessity of this
kind of approach. The impression he had from talking with defense
attorneys is that these depositions are not granted often in the
first place.
TAPE 95-2, SIDE A
Number 000
REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli if he has actually
seen a large number of these cases.
MR. GUANELI noted that it is not all judges, it is just certain
judges in certain areas of the state. In many areas of the state,
it is a rare occurrence and this will not change that, but in those
areas of the state where for one reason or another the judge is
applying a looser standard, and with language such as "for good
cause," and good cause is a pretty low standard, and it depends to
a large extent on the judge's own subjective view about what that
is. That can be used more than it should in some areas, so it
varies by region and by judge.
Number 017
REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli if he was aware of
circumstances where there are more than a handful of these
depositions occurring, whether it is five or ten in a year or
something like that.
Number 021
MR. GUANELI said that was correct.
Number 022
CHAIRMAN PORTER noted the inclusion of Section 2, page 2, which
says that the court shall preside over a deposition, and orders
under (a). The rule goes on to say that parties can agree on some
other form of deposition. He had an amendment prepared, if Mr.
Guaneli felt there would be any kind of problem there, that would
say, "nor does it preclude depositions taken or used under (g) of
this rule."
Number 024
MR. GUANELI said there are cases where the victim is not going to
be the witness in the deposition. It may be perfectly appropriate
to have it be a simple matter of agreeing whether it is going to be
in front of a court reporter or in a room off somewhere, and you
tape your testimony.
Number 031
CHAIRMAN PORTER said his question is whether or not this can happen
under this current wording of the bill.
Number 036
MR. GUANELI said that no, he was satisfied.
Number 040
REPRESENTATIVE BUNDE moved that CSHB 26 (JUD) be passed from the
Judiciary Committee, with individual recommendations.
Number 045
CHAIRMAN PORTER added, and fiscal notes as attached. Hearing no
objection, the bill was moved.
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