03/08/1995 01:59 PM Senate JUD

 SJUD - 3/8/95                                                                 
              HB 26 DEPOSITIONS IN CRIMINAL CASES                             
                                                                              
 REPRESENTATIVE PARNELL, sponsor of HB 26, explained under current             
 law, a motion must be filed with the court to take a deposition of            
 another person in criminal cases.  In practice, this provides                 
 another attempt to interview witnesses and victims, particularly              
 victims of sexual assault, and provide another opportunity for                
 harassment of those victims.  In most cases, the victim has already           
 given a tape recorded statement to the police, as well as a tape              
 recorded and transcribed statement to the grand jury, both of which           
 are available to the defense.  CSHB 26(Jud) attempts to incorporate           
 portions of the federal court rule which states that depositions in           
 criminal cases can only be taken under exceptional circumstances or           
 when the witness will be unavailable for trial.  The exceptional              
 circumstances test is in use in all 50 states and all federal                 
 courts.                                                                       
                                                                               
 SENATOR ADAMS discussed a bill reviewed in committee last week                
 which attempted to change Rule 16. The Supreme Court undertook a              
 review of the court rule.  He asked if a similar review had been              
 undertaken on Rule 15.  REPRESENTATIVE PARNELL commented that the             
 court reviewed Rule 16 because it was a court committee                       
 recommendation, but he did not believe the same recommendations was           
 made for Rule 15.  MR. GUANELI confirmed that there was no court              
 recommendation to review Rule 15.                                             
                                                                               
 SENATOR ADAMS noted the phrase "clear and convincing evidence" on             
 page 1, line 7, requires a higher standard of proof than the                  
 language "beyond a reasonable doubt."  He questioned why a higher             
 standard of proof would be used.  REPRESENTATIVE PARNELL explained            
 that the standard of proof "beyond a reasonable doubt" refers to              
 the standard under which a person is convicted.  The "clear and               
 convincing evidence" standard relates to what must be shown upon              
 this motion.  CSHB 26(Jud) requires either party to show clear and            
 convincing evidence that exceptional circumstances exist. This                
 narrows the scope under which depositions can be taken.                       
                                                                               
 SENATOR TAYLOR asked if the Public Defender Agency is opposed to              
 CSHB 26(Jud) and whether Mr. Guaneli was aware of abuses to Rule 15           
 in Alaska.  MR. GUANELI stated there are specific judges in                   
 specific locations who grant depositions, particularly in rape                
 cases, in almost every case.  That kind of practice is limited but            
 does occur and causes great concern to victims in those cases.  He            
 discussed the revictimization of the victim when they must make               
 another deposition in front of the offender with no judge present.            
 Defendants have the right to be present at all critical court                 
 proceedings.  The American Bar Association (ABA) recommends that in           
 criminal depositions, the offender not have a right to be present,            
 but that does not hold in Alaska.  He added the Public Defender               
 Agency does not feel it would affect that many cases which is why             
 they are not actively opposing the bill.                                      
                                                                               
 SENATOR TAYLOR felt the lack of opposition speaks highly of the               
 candor of the Public Defender Agency.  SENATOR ELLIS asked how many           
 victims are involved.  MR. GUANELI believed 15 to 20 victims per              
 year are affected.                                                            
                                                                               
 LAUREE HUGONIN stated ANDVSA supports CSHB 26(Jud).  ANDVSA does              
 not believe it places an undue burden on the defense and it will              
 protect victims that already make their testimony available in                
 several ways.  She urged the committee's support of CSHB 26(Jud).             
                                                                               
 SENATOR GREEN moved CSHB 26(Jud) out of committee with individual             
 recommendations.  There being no objection, the motion carried.