Legislature(2023 - 2024)GRUENBERG 120
03/04/2024 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| HB67 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 67 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 67-HARASSMENT; SEX OFFENDERS & OFFENSES
2:07:05 PM
CHAIR VANCE announced that the only order of business would be
HOUSE BILL NO. 67, "An Act relating to criminal law and
procedure; relating to the crime of stalking; relating to
consecutive sentencing for violation of conditions of release;
relating to the duty to register as a sex offender; amending the
definition of 'sex offense'; amending the definition of 'crime
involving domestic violence'; relating to multidisciplinary
child protection teams; amending Rule 6(r), Alaska Rules of
Criminal Procedure; and providing for an effective date."
[Before the committee was HB 67, as amended on 2/5/24.]
[Because of their length, some amendments discussed or adopted
during the meeting are found at the end of the minutes for HB
67. Shorter amendments are included in the main text.]
2:07:47 PM
The committee took an at-ease from 2:07 p.m. to 2:11 p.m.
2:11:30 PM
REPRESENTATIVE CARPENTER moved Amendment 6 to HB 67, labeled 33-
GH1031\A.23, C. Radford, 3/1/24. [Amendment 67 is provided at
the end of the minutes on HB 67.]
REPRESENTATIVE ALLARD objected.
2:11:45 PM
REPRESENTATIVE CARPENTER explained Amendment 6. He said HB 67,
as amended, is known as a victims' rights bill, and central to
that is the ability of a grand jury to seek justice for
Alaskans. He said recent history had identified a need to
reform the grand jury process, and as a response, Amendment 6
was drafted. The adoption of Amendment 6 would be seen by
posterity as important legislative intent and referenced by
future courts. He proceeded to read Article 1, Section 8, of
the Alaska Constitution, which provides for the right to a grand
jury. He shared that in the past six years, officers of the
court had prevented members of the grand jury from speaking
amongst themselves about crimes that they want investigated.
However, under statute, if a grand jury member knows of a crime,
that information should be shared with the grand jury, and the
grand jury shall investigate. The current system, he said, has
prevented information from getting to the grand jury unless the
prosecuting attorney allows it. He cited the duty of the
prosecuting attorney under AS 12.40.070 and claimed that while
paragraphs (1) and (2) of that section are being followed,
paragraph (3) is not.
2:20:57 PM
REPRESENTATIVE CARPENTER stated that Amendment 6 would protect
victims of government corruption by enabling the grand jury to
fulfill its constitutional authority and exercise its
responsibility to ensure public welfare and safety. Amendment 6
would do the following: require the inclusion of at least two
alternate jurors on a grand jury; clarify and reinforce the
grand jury's power to initiate investigations without seeking
approval from a prosecuting attorney; require individual grand
jurors to disclose to the prosecuting attorney or presiding
judge, in addition to the other jurors, knowledge of a potential
crime; reinforce the current statutory responsibility of a grand
jury to direct a prosecutor to prepare an indictment; direct the
prosecutor to make arrangements for citizens to speak with a
grand jury; allow a witness to summarize admissible evidence if
the evidence will be available at trial; require the prosecuting
attorney, before an indictment, to inform the grand jury if
information presented to the grand jury may be considered
hearsay or determined inadmissible at trial; allow for
inadmissible information to be included in a report by the grand
jury; require prosecutors to advise the attorney general if a
grand jury investigation includes possible misconduct on the
part of a prosecutor, at which point a neutral prosecuting
attorney must be appointed to assist the grand jury in the
investigation; allow citizens not sitting on a grand jury to
inform a prosecutor of matters of public welfare to be
investigated; allow a grand jury to issue a subpoena to compel
testimony for the production of documents; require the
prosecuting attorney to inform the grand jury of the
ramifications of including information that may jeopardize the
validity of an indictment if the grand jury receives information
that may be inadmissible in court. He further explained that if
the grand jury proceeds with the investigation despite the
inclusion of prejudicial or inadmissible evidence, the grand
jury may request that the indictment be transferred to another
grand jury.
2:34:01 PM
REPRESENTATIVE ALLARD sought to confirm that there would be two
separate grand juries.
REPRESENTATIVE CARPENTER explained in Amendment 6, one grand
jury can both indict and investigate; however, a second grand
jury could be sought to replace a grand jury that was presented
with inadmissible information to account for the due process of
Alaskans and maintain the dual authority of indictment and
investigation.
2:37:53 PM
REPRESENTATIVE ALLARD asked whether Representative Carpenter was
insinuating that one grand jury can indict and investigate at
the same time.
REPRESENTATIVE CARPENTER answered no. He shared his
understanding that in a normal investigation, a grand jury would
uncover inadmissible information and therefore, any indictment
would be tainted. Consequently, the grand jury conducting the
investigation would have to forward the indictment to another
grand jury to consider the admissible information.
REPRESENTATIVE ALLARD asked whether Amendment 6 allowed for the
grand jury to both investigate and indict.
REPRESENTATIVE CARPENTER addressed the definition of "indict,"
explaining that Amendment 6 would direct the prosecuting
attorney to forward an indictment to a second grand jury.
2:39:52 PM
REPRESENTATIVE CARPENTER resumed the explanation of Amendment 6.
He said Amendment 6 would require the prosecuting attorney to
prepare indictments or presentments for a replacement grand jury
if directed by a grand jury; require a court to dismiss an
indictment resulting from the testimony of a peace officer if
the testimony is inaccurate because of negligent misstatements
or omissions; create a class A misdemeanor for obstructing a
grand jury; add a penalty for questioning a juror for conduct;
delete Rule 6(r) from court rules; remove limitations on court
rules for grand juries to investigate or make reports and
recommendations concerning the public welfare or safety. He
explained that through the amendment, he aimed to modify the
current process in order for grand jurors and everyday Alaskans
to bring their cases directly to the grand jury. The power of
the investigatory grand jury is specifically designated to
combat public corruption.
CHAIR VANCE sought questions from committee members.
2:44:51 PM
REPRESENTATIVE GROH questioned the expected cost of the proposed
amendment.
REPRESENTATIVE CARPENTER said there is no fiscal note associated
with Amendment 6; however, that does not mean there's not a
respective cost. He reported that $500,000 was earmarked in the
current budget for grand juries conducting investigations;
however, he said no one knows exactly how much it would cost.
REPRESENTATIVE GROH asked whether Amendment 6 would overturn any
Alaska Supreme Court decisions.
REPRESENTATIVE CARPENTER said Legislative Legal Services had
indicated that Amendment 6 would not be found unconstitutional.
REPRESENTATIVE GROH said given the broad scope, it would be
useful to hear from the Department of Law (DOL) and the Alaska
Court System. He referenced the broad definition on page 7,
line 10, which may contribute to potential costs. In addition,
he asked whether excessively broad evidence presented to the
grand jury was a factor in the recent dismissal of a case
arising from the Kenai Peninsula that had been reported on in
the media.
REPRESENTATIVE CARPENTER answered no, [broad evidence was not a
factor].
2:50:50 PM
REPRESENTATIVE GROH said he read a new report that suggested
otherwise. He referenced the concern expressed by
Representative Allard and asked whether one grand jury could
investigate another grand jury's failure to indict, thereby
creating a circular nature that might contribute to substantial
costs.
REPRESENTATIVE CARPENTER noted that DOL posed the same question
and characterized the supposition as a "fear factor from an
organization that does not want to conduct or allow grand juries
to investigate on what Alaskans want to investigate on." He
opined that a circular nature would indicate that information is
not being adequately presented to a grand jury.
2:54:14 PM
The committee took a brief at-ease.
2:55:25 PM
CHAIR VANCE sought questions from committee members.
2:55:32 PM
REPRESENTATIVE GRAY directed attention to page 4, lines 19-24,
and asked whether prosecutors would be required to make
arrangements for any citizen expressing a concern about matters
of public welfare to speak to a grand jury.
REPRESENTATIVE CARPENTER said yes, that is the intent of the
legislation.
REPRESENTATIVE GRAY asked whether citizens would be able to
repeatedly present their concerns to different grand juries.
REPRESENTATIVE CARPENTER did not know the answer. He
acknowledged that there could be room for abuse.
REPRESENTATIVE GRAY questioned the safeguards against angry
citizens who might continuously bring superfluous charges
against someone.
REPRESENTATIVE CARPENTER said there's not a perfect solution for
that other than placing someone in charge as a gatekeeper for
the information presented to the grand jury.
CHAIR VANCE pointed out that the grand jury must follow the law,
which includes due process. She explained that there would need
to be proof that the person being investigated actually broke
the law.
3:01:17 PM
REPRESENTATIVE GRAY asked for DOL's position on Amendment 6.
3:01:51 PM
ANGIE KEMP, Director, Criminal Division, Department of Law
(DOL), said DOL does not support the proposed amendment, as
drafted. She said the department continues to have a multitude
of concerns related to the legislation, including the idea that
inadmissible evidence could be instructed away, and the belief
that that may "cure" the potential issues that might flow from
an indictment. Among the core concerns from the department's
perspective is the way the language relates to the admission of
evidence and the summaries that witnesses can offer, per
Sections 10 and 11 of the bill. She expressed concern that the
language in those sections could lend itself to interpretation
by the courts that would create problems going forward. She
indicated that there are other constitutional concerns as well,
including the allowance of unfettered unrestricted access to
investigative grand juries without guardrails. She added that
repeated claims being brought by the same person is likely to
happen and would create another appellate avenue for criminal
litigates who are dissatisfied with the results of their case,
thereby doing more harm to victims. She highlighted Section 4
and the lack of limitations on the court's ability to interpret
constitutional provisions or issues related to a piece of
legislation, which would completely "ice out" the court system.
3:06:40 PM
REPRESENTATIVE CARPENTER contended that nothing in Amendment 6
would cure a grand jury that had been presented both admissible
and inadmissible information. He asked what section Ms. Kemp
was referring to.
MS. KEMP directed attention to Section 12.40.170 on page 5 of
Amendment 6, which would make it discretionary on the part of
the grand jury to determine whether there had been a due process
violation or whether inadmissible evidence was presented to such
a degree that it would need to be referred to another grand
jury, which is a legally complicated analysis that could prevent
prosecutors from proceeding.
REPRESENTATIVE CARPENTER shared his understanding that the grand
jury could not continue with an indictment that includes
inadmissible information.
3:12:05 PM
REPRESENTATIVE ALLARD, referring to page 5, line 4, asked how a
grand jury is supposed to "unhear" inadmissible information and
indict only on admissible evidence.
MS. KEMP said that's precisely the issue. She said from DOL's
perspective, the bill would allow for the same grand jury to
potentially indict. She explained that there comes a tipping
point, known as the "Stern standard," at which point
[inadmissible evidence] cannot be instructed away and
jeopardizes the indictment itself. If the discretion is left
with the grand jury to decide whether or not to proceed to an
indictment, things would become problematic, she said.
3:15:00 PM
REPRESENTATIVE CARPENTER asked how the department would overcome
the Stern doctrine if it were impacting a grand jury today and
whether that case could be presented to another grand jury.
MS. KEMP said not without seeking judicial review first before
re-presenting that case before a grand jury. She shared an
example, indicating that typically, new or additional evidence
must be acquired to re-present the case.
REPRESENTATIVE CARPENTER sought to confirm that there is a
process in current law for curing a grand jury that has been
presented with inadmissible information, and yet, modifying the
process to allow grand juries to investigate would nullify the
process. He asked whether the department is in favor of grand
juries being able to investigate and indict.
MS. KEMP answered yes; however, not through the vehicle of
Amendment 6. She further noted that the proposed amendment
would not allow for guardrails to be placed on successive
applications; instead, it would task the grand jury with
deciding whether something lends itself to a civil dispute or a
private right.
REPRESENTATIVE CARPENTER shared his understanding that DOL is in
favor of the grand jury being able to investigate and indict,
and yet, prosecutors have prevented that same thing from
happening. He said he did not understand the contradiction
between the department's statement and its actions.
3:22:37 PM
REPRESENTATIVE C. JOHNSON spoke to the three branches of
government and opined that they are on the brink of a separation
of powers issue. He shared his belief that the legislature is
trying to adjudicate, the court system is trying to legislate,
and DOL is trying to moderate. He remarked that the legislature
should do its job by writing the laws.
3:24:11 PM
The meeting was recessed at 3:24 p.m. to be continued at 5:30
p.m.
5:54:50 PM
CHAIR VANCE called the House Judiciary Standing Committee
meeting back to order at 5:54 p.m. Representatives Carpenter,
C. Johnson, Gray, Allard, and Vance were present at the call
back to order. Representative Groh arrived as the meeting was
in progress.
5:55:31 PM
REPRESENTATIVE CARPENTER asked what makes Amendment 6
unconstitutional.
MS. KEMP stated that there are several concerns. One is related
to the section allowing any evidence to be introduced and the
section concerning the grand jury's authority to compel the
production of evidence. Despite the constitutional protections
for individuals testifying, from DOL's perspective, Amendment 6
would permit individuals to be called to the grand jury and then
forced to testify under oath despite the constitutional
implications surrounding the testimony, such as psychotherapist
patient privileges or attorney/client privilege.
5:59:31 PM
REPRESENTATIVE CARPENTER asked which section of the proposed
amendment Ms. Kemp was referring to.
MS. KEMP answered Section 11 and Section 12.
6:01:31 PM
REPRESENTATIVE CARPENTER asked whether the act of subpoenaing a
witness requires that person to give up their Fifth Amendment
right.
MS. KEMP said [the grand jury] is still limited by various
privileges and constitutional rights. Ms. Kemp shared the
example of a spouse being asked to testify to private
conversations between her and her significant other, which, if
she objected to, could not be forced.
6:03:22 PM
MS. KEMP, in response to a follow up question from
Representative Carpenter, explained that should Amendment 6
pass, the grand jury could subpoena a potential target and,
despite the prosecutor's advice, compel the witness to testify
regardless of his/her constitutional rights; furthermore, the
prosecutor could give advice, but could not stop the witness
from testifying.
REPRESENTATIVE CARPENTER shared his understanding that Ms. Kemp
had stated that should Amendment 6 pass, the grand jury might
mislead an individual into testifying who has a constitutional
right not to. He asked whether that is correct.
MS. KEMP responded, "Perhaps." She said the broader issue is
that it would authorize the grand jury to do more than its
currently authorized and would not allow for intervention to
prevent a constitutional issue from occurring. She added that
it seems to work against the prosecutor's ability to stop a
proceeding that would illicit privileged or constitutionally
protected information.
REPRESENTATIVE CARPENTER contended that currently, the grand
jury is being prevented from investigating. He reiterated that
the proposed amendment would clarify that the grand jury can
investigate "wherever it needs to go" concerning public welfare
and safety and shall not be suspended. He asked Legislative
Legal Services whether there is a constitutional issue [with
regard to Sections 11 and 12].
6:12:48 PM
REPRESENTATIVE ALLARD asked whether the U.S. Constitution and
Alaska Constitution supersedes Amendment 6.
MS. KEMP answered yes.
REPRESENTATIVE ALLARD said if that's true, she was confused by
Ms. Kemp's argument.
MS. KEMP shared an example related to Sections 10 and 11. She
reiterated that ultimately, the court is responsible for
identifying potential constitutional concerns.
6:17:18 PM
REPRESENTATIVE ALLARD asked whether Ms. Kemp was saying that
Section 10 and Section 11 violate either the U.S. Constitution
or the Alaska Constitution in any way.
MS. KEMP said given the language in Sections 10 and 11, the
intent is unclear. Further, she questioned whether it was
designed to achieve the committee's intent. Ultimately, she
expressed concern that the courts may declare it
unconstitutional. She provided an example.
6:19:53 PM
The committee took an at-ease from 6:19 p.m. to 6:25 p.m.
6:25:10 PM
CHAIR VANCE
REPRESENTATIVE CARPENTER questioned the constitutionality of
Section 11 in Amendment 6.
6:26:08 PM
CLAIRE RADFORD, Attorney, Legislative Legal Services,
Legislative Affairs Agency (LAA), responded that it is difficult
to say with certainty whether the court would find a statute
unconstitutional. She said it would depend on the facts of a
specific case and what was presented to the grand jury.
Regarding Section 11, she shared her belief that a grand jury
could not compel a person to testify against his/her own self-
interest or require a person to waive his/her constitutional
rights.
6:27:20 PM
REPRESENTATIVE GRAY sought to confirm that "hearsay" [evidence]
applies to everyone.
MS. RADFORD said, "That would be correct."
REPRESENTATIVE GRAY asked when section 10 would be used, as
opposed to Section 11.
MS. RADFORD said Section 11 of Amendment 6, hearsay evidence,
states that all evidence or information may be presented to the
grand jury. Conversely, under Section 10, the grand jury would
only be able to use admissible evidence for the purpose of
returning a true bill.
REPRESENTATIVE GRAY directed attention to page 5, lines 14-17,
and asked whether there would be limitations on the replacement
grand jury.
MS. RADFORD established that as drafted, there are no
limitations on the grand jury's ability to request that an
indictment be brought before another grand jury.
6:31:45 PM
REPRESENTATIVE GRAY suggested that there could be a continuous
cycle of replacement grand juries. He asked whether that is
accurate.
MS. RADFORD confirmed that Representative Gray had highlighted a
potential hazard of the proposed amendment, as there would be no
limit on the number of grand juries that could pursue an
indictment if more prejudicial or inadmissible evidence were
found.
CHAIR VANCE referred to Section 12, and asked whether a lack of
purposeful evidence in the aforementioned scenario could be
considered obstruction.
MS. RADFORD said overall, it is unlikely that a person could be
charged with obstructing a grand jury for proceeding in that
manner.
6:34:10 PM
REPRESENTATIVE C. JOHNSON inquired about severability and asked
whether it is a "bygone era." He recalled putting severability
clauses in bills to ensure that if one section of the bill were
unconstitutional, the whole bill would not be struck down.
MS. RADFORD revealed that severability provisions are no longer
necessary, per Title 1.
REPRESENTATIVE C. JOHNSON sought to confirm that if Section 11
were deemed unconstitutional, the rest of the bill would remain
intact.
MS. RADFORD responded, "That is correct."
6:36:47 PM
REPRESENTATIVE CARPENTER asked whether any other provisions in
Amendment 6 could be construed as unconstitutional.
MS. RADFORD said she had not identified any other provisions
that may be considered unconstitutional; however, it is hard to
say with certainty.
6:38:24 PM
REPRESENTATIVE GROH requested a ballpark estimate of the
perceived cost of Amendment 6 from DOL's perspective.
MS. KEMP acknowledged that there would be a fiscal impact;
however, she could not provide an estimate at this time.
REPRESENTATIVE GROH requested a list of court decisions that
could be impacted by Amendment 6.
MS. KEMP cited the O'Leary v. Superior Court and Powell v. State
decisions in reference to Sections 10 and 11.
6:42:48 PM
REPRESENTATIVE GROH requested a ballpark estimate of the cost to
the Alaska Court System should Amendment 6 pass.
NANCY MEADE, General Counsel, Alaska Court System, reflected on
grand jurors' compensation and recalled an example in which the
pay to the grand jurors amounted to $15,000; consequently, 20
grand juries per year would amount to $20,000. She added that
she was not prepared to make an educated guess on the cost
today.
6:44:15 PM
REPRESENTATIVE GROH asked whether any administrative concerns
had been identified.
MS. MEADE said administratively, it would be a matter of calling
additional grand jurors and one more statewide jury coordinator
to deal with the expanded grand jury list. Also, if this were
to become more common, there might be a space constraint to
consider in terms of where the investigative grand juries could
meet.
REPRESENTATIVE GROH asked about procedural concerns that might
be engendered by the adoption of Amendment 6.
MS. MEADE expressed concern about the removal of criminal rule
6.1, which reflects the court's position on how to best approach
investigative grand juries and offers guidelines on matters of
public welfare and safety. Nonetheless, she acknowledged that
the legislature has the authority to make this change.
6:49:07 PM
REPRESENTATIVE C. JOHNSON encouraged the committee to stick to
policy decisions, not money, as the bill would be referred to
the House Finance Committee.
6:53:46 PM
REPRESENTATIVE CARPENTER asked if the legislature were to change
the statutes regarding admissible evidence in hearsay, whether
that would impact indictments, investigations, or both.
MS. MEADE said she did not understand the question. She
addressed the danger of instituting an unconstitutional
provision or a provision that could be challenged as such. She
explained that if someone were convicted with evidence that is
not currently admissible, but new statute allowed it to be
admitted, that person could ask the Alaska Supreme Court to
overturn the conviction by citing an improper indictment. In
this instance, the district attorney (DA) may have followed the
statute, but the statute could be ruled unconstitutional, and
consequently, the indictment could be thrown out.
REPRESENTATIVE CARPENTER referenced the Powell doctrine and
shared his understanding that additional amounts of admissible
hearsay was found constitutional. He asserted that putting
[hearsay] in statute would make it less likely that the courts
would find it unconstitutional.
6:57:43 PM
CHAIR VANCE asked Representative Carpenter to clarify the
difference between an investigative grand jury and an indicting
grand jury.
REPRESENTATIVE CARPENTER described the process that
differentiates the investigative grand jury from the replacement
grand jury.
7:00:58 PM
CHAIR VANCE questioned the purpose of Amendment 6.
REPRESENTATIVE CARPENTER said the purpose of the proposed
amendment is to enable the grand jury to investigate matters of
public welfare and safety, and issue either an indictment or a
report to the public, thereby following through on its
constitutional authority.
7:02:06 PM
REPRESENTATIVE ALLARD removed her objection.
REPRESENTATIVE GRAY objected.
7:02:30 PM
REPRESENTATIVE GRAY referenced an Anchorage Daily News (ADN)
article about a Kenai Peninsula grand jury, in which the judge
found the indictment to be exceptionally vague, lacking details,
and flooded with improperly presented evidence. He expressed
concern that Amendment 6 would make all grand juries more like
the Kenai Peninsula case. He opined that grand jury reform is
wide ranging and worthy of its own bill to be fully vetted. He
expressed concern that the convening of more grand juries would
garner a fiscal note and worried about potential litigation. He
quoted two committee members' comments about a previous
amendment about financial considerations, and said he felt the
same way about Amendment 6, and for that reason, he would be a
"no" vote.
7:05:29 PM
REPRESENTATIVE GROH expressed concern that the issue had not
been fully vetted. He shared his belief that Amendment 6 could
magnify grievances and give power the grand jury in ways that
differ from the constitutional intent; further, he echoed
Representative Gray's comments about financial considerations
and said he would be a "no" vote on Amendment 6.
CHAIR VANCE said the public has heard from both the courts and
DOL on this issue, but not from the legislature. She opined
that Amendment 6 would clarify the legislature's position on
grand juries, and by doing so, provide the balance of all three
branches of government [weighing in on the issue].
7:08:04 PM
A roll call vote was taken. Representatives Carpenter, C.
Johnson, Allard, and Vance voted in favor of Amendment 6.
Representatives Gray and Groh voted against it. Therefore,
Amendment 6 was adopted by a vote of 4-2.
7:08:39 PM
REPRESENTATIVE ALLARD moved to adopt Amendment 7 to HB 67,
labeled 33-GH1031\A.25, C. Radford, 3/2/24, which read:
Page 1, line 10, through page 2, line 1:
Delete all material and insert:
"LEGISLATIVE FINDINGS AND INTENT. (a) The
legislature finds that safeguarding the constitution
is not solely the responsibility of the courts and
that every branch of state government has a duty to
uphold the constitution. When the foundational
institutions outlined in the constitution are
disregarded or marginalized, it is imperative for the
legislature to fortify those institutions.
(b) It is the intent of the legislature to
protect the constitutional rights of citizens of the
state by empowering the grand jury to seek justice and
minimize trauma to victims while upholding due
process.
(c) The legislature further finds that a grand
jury's constitutional duties to return indictments and
investigate matters concerning public welfare and
safety are complementary and must be performed in a
manner that protects citizens' constitutional rights."
Reletter the following subsection accordingly.
REPRESENTATIVE CARPENTER objected.
7:09:14 PM
BOB BALINGER, Staff, Representative Sarah Vance, Alaska State
Legislature, on behalf of Representative Vance, explained
Amendment 7. He said the proposed amendment would add
legislative intent language to overturn the Powell decision to
the extent that it concerns the admissibility of hearsay
evidence. He proceeded to paraphrase subsections (a) through
(c).
7:11:37 PM
REPRESENTATIVE GRAY shared his understanding that HB 67, as
amended, would all hearsay evidence to be admissible. He asked
whether the additional amendment was necessary.
MR. BALLINGER answered no, the purpose of Amendment 7 was to
clarify legislative intent.
7:12:48 PM
The committee took an at-ease from 7:12 p.m. to 7:16 p.m.
2:16:15 PM
REPRESENTATIVE GROH maintained his objection. He opined that
expanding the use of hearsay makes sense for sexual offenses
involving minors; however, it would not make as much sense for
other cases. For that reason, he said he would be voting "no"
on Amendment 7 and planned to offer Amendment 4.
REPRESENTATIVE CARPENTER asked whether the question could be
divided to adopt the intent language and allow Representative
Groh to offer his amendment.
7:18:13 PM
REPRESENTATIVE ALLARD asked whether Representative Groh
disagreed with subsection (b) of Amendment 7.
REPRESENTATIVE GROH clarified that he agreed with subsection
(b). He explained that he disagreed with the wide application
of hearsay, as it would apply to criminal offenses such as
alleged embezzlement or car theft.
REPRESENTATIVE ALLARD pointed out that Amendment 7 provided
legislative intent language and therefore, she said she was
supportive of it.
7:22:08 PM
A roll call vote was taken. Representatives Allard, Carpenter,
C. Johnson, and Vance voted in favor of Amendment 7.
Representatives Gray and Groh voted against it. Therefore,
Amendment 7 was adopted by a vote of 4-2.
REPRESENTATIVE GRAY moved to rescind the committee's action on
2/9/24 in failing to adopt Amendment 3 to HB 67, labeled 33-
GH1031\A.14, C. Radford, 2/5/24, which read:
Page 1, line 1, following "stalking;":
Insert "relating to sexual abuse of a minor;"
Page 2, line 2:
Delete "sec. 12"
Insert "sec. 15"
Page 2, following line 28:
Insert new bill sections to read:
"* Sec. 3. AS 11.41.434(a) is amended to read:
(a) An offender commits the crime of sexual
abuse of a minor in the first degree if
(1) being 16 years of age or older, the
offender engages in sexual penetration with a person
who is under 13 years of age or aids, induces, causes,
or encourages a person who is under 13 years of age to
engage in sexual penetration with another person;
(2) being 18 years of age or older, the
offender engages in sexual penetration with a person
who is under 18 years of age, and the offender is the
victim's natural parent, stepparent, adopted parent,
or legal guardian; or
(3) being 18 years of age or older, the
offender engages in sexual penetration with a person
who is under 18 [16] years of age, and
(A) the victim at the time of the offense
is residing in the same household as the offender and
the offender has authority over the victim; or
(B) the offender occupies a position of
authority in relation to the victim.
* Sec. 4. AS 11.41.436(a) is amended to read:
(a) An offender commits the crime of sexual
abuse of a minor in the second degree if,
(1) being 17 years of age or older, the
offender engages in sexual penetration with a person
who is 13, 14, [OR] 15, 16, or 17 years of age and at
least four years younger than the offender, or aids,
induces, causes, or encourages a person who is 13, 14,
[OR] 15, 16, or 17 years of age and at least four
years younger than the offender to engage in sexual
penetration with another person;
(2) being 16 years of age or older, the
offender engages in sexual contact with a person who
is under 13 years of age or aids, induces, causes, or
encourages a person under 13 years of age to engage in
sexual contact with another person;
(3) being 18 years of age or older, the
offender engages in sexual contact with a person who
is under 18 years of age, and the offender is the
victim's natural parent, stepparent, adopted parent,
or legal guardian;
(4) being 16 years of age or older, the
offender aids, induces, causes, or encourages a person
who is under 16 years of age to engage in conduct
described in AS 11.41.455(a)(2) - (6);
(5) being 18 years of age or older, the
offender engages in sexual contact with a person who
is under 18 [16] years of age, and
(A) the victim at the time of the offense
is residing in the same household as the offender and
the offender has authority over the victim; or
(B) the offender occupies a position of
authority in relation to the victim;
(6) being 18 years of age or older, the
offender engages in sexual penetration with a person
who is 16 or 17 years of age and at least three years
younger than the offender, and the offender occupies a
position of authority in relation to the victim; or
(7) being under 16 years of age, the
offender engages in sexual penetration with a person
who is under 13 years of age and at least three years
younger than the offender.
* Sec. 5. AS 11.41.438(a) is amended to read:
(a) An offender commits the crime of sexual
abuse of a minor in the third degree if being 17 years
of age or older, the offender engages in sexual
contact with a person who is 13, 14, [OR] 15, 16, or
17 years of age and at least four years younger than
the offender."
Renumber the following bill sections accordingly.
Page 12, line 29:
Delete all material and insert:
"* Sec. 16. AS 11.41.436(a)(6), 11.41.440(a)(2);
AS 12.40.110; and AS 12.63.100(7)(C)(ii) are
repealed."
Page 13, line 1, following "Act,":
Insert "AS 11.41.434(a), as amended by sec. 3 of
this Act, AS 11.41.436(a), as amended by sec. 4 of
this Act, AS 11.41.438(a), as amended by sec. 5 of
this Act,"
Page 13, line 2:
Delete "sec. 3"
Insert "sec. 6"
Page 13, lines 2 - 3:
Delete "sec. 9"
Insert "sec. 12"
Page 13, line 5:
Delete "sec. 4"
Insert "sec. 7"
Delete "sec. 5"
Insert "sec. 8"
Page 13, line 6:
Delete "sec. 6"
Insert "sec. 9"
Page 13, line 9:
Delete "sec. 7"
Insert "sec. 10"
Page 13, line 13:
Delete "sec. 7"
Insert "sec. 10"
Page 13, line 16:
Delete "sec. 8"
Insert "sec. 11"
Page 13, line 18:
Delete "sec. 12"
Insert "sec. 15"
Page 13, line 24:
Delete "sec. 12" in both places
Insert "sec. 15" in both places
7:23:28 PM
The committee took an at-ease from 7:23 p.m. to 7:26 p.m.
7:26:20 PM
A roll call vote was taken. Representatives Groh and Gray voted
in favor of rescinding action on Amendment 3. Representatives
Allard, Carpenter, C. Johnson, and Vance voted against it.
Therefore, rescinding action on Amendment 3 failed by a vote of
2-4.
7:27:11 PM
REPRESENTATIVE GROH moved to adopt Amendment 4 to HB 67, labeled
33-GH1031\A.16, C. Radford, 2/6/24, which read:
Page 1, line 1, following "procedure;":
Insert "relating to hearsay evidence in
prosecutions for sexual offenses;"
Page 1, line 5:
Delete "6(r)"
Insert "6(s)"
Page 1, line 8, through page 2, line 6:
Delete all material.
Page 2, line 7:
Delete "Sec. 2"
Insert "Section 1"
Page 2, following line 28:
Insert a new bill section to read:
"* Sec. 2. AS 12.40.110(a) is amended to read:
(a) In a prosecution for an offense under
AS 11.41.410 - 11.41.458, hearsay evidence of a
statement related to the offense, not otherwise
admissible, made by a child who is the victim of the
offense may be admitted into evidence before the grand
jury if
(1) the circumstances of the statement
indicate its reliability;
(2) the child is under 18 [10] years of age
when the hearsay evidence is sought to be admitted;
(3) additional evidence is introduced to
corroborate the statement; and
(4) the child testifies at the grand jury
proceeding or the child will be available to testify
at trial."
Renumber the following bill sections accordingly.
Page 11, line 10:
Delete "6(r)"
Insert "6(s)"
Page 11, line 12, through page 12, line 29:
Delete all material and insert:
"(s) Admissibility of Evidence.
(1) Evidence which would be legally
admissible at trial shall be admissible before the
grand jury. In appropriate cases, however, witnesses
may be presented to summarize admissible evidence if
the admissible evidence will be available at trial.
Except as stated in subparagraphs (2), (3), and (6),
hearsay evidence shall not be presented to the grand
jury absent compelling justification for its
introduction. If hearsay evidence is presented to the
grand jury, the reasons for its use shall be stated on
the record.
(2) In a prosecution for an offense under
AS 11.41.410 - 11.41.458, hearsay evidence of a
statement related to the offense, not otherwise
admissible, made by a child who is the victim of the
offense may be admitted into evidence before the grand
jury if
(i) the circumstances of the statement
indicate its reliability;
(ii) the child is under 18 [10] years of
age when the hearsay evidence is sought to be
admitted;
(iii) additional evidence is introduced to
corroborate the statement; and
(iv) the child testifies at the grand jury
proceeding or the child will be available to testify
at trial.
(3) Hearsay evidence related to the
offense, not otherwise admissible, may be admitted
into evidence before the grand jury if
(i) the individual presenting the hearsay
evidence is a peace officer involved in the
investigation; and
(ii) the hearsay evidence consists of the
statement and observations made by another peace
officer in the course of an investigation; and
(iii) additional evidence is introduced to
corroborate the statement.
(4) If the testimony presented by a peace
officer under paragraph (3) of this section is
inaccurate because of intentional, grossly negligent,
or negligent misstatements or omissions, then the
court shall dismiss an indictment resulting from the
testimony if the defendant shows that the inaccuracy
prejudices substantial rights of the defendant.
(5) In this section "statement" means an
oral or written assertion or nonverbal conduct if the
nonverbal conduct is intended as an assertion.
(6) When a prior conviction is an element
of an offense, hearsay evidence received through the
Alaska Public Safety Information Network or from other
government agencies of prior convictions may be
presented to the grand jury."
Page 13, line 1:
Delete "sec. 2"
Insert "sec. 1"
Page 13, following line 3:
Insert a new subsection to read:
"(b) AS 12.40.110(a), as amended by sec. 2 of
this Act, applies to a prosecution for an offense
committed on or after the effective date of this Act."
Reletter the following subsections accordingly.
Page 13, line 18:
Delete "6(r)"
Insert "6(s)"
Page 13, line 23:
Delete "6(r)"
Insert "6(s)"
REPRESENTATIVE ALLARD objected.
7:27:21 PM
REPRESENTATIVE GROH said he found the bill's broad expansion of
hearsay at grand juries to be problematic. Amendment 4, he
explained, would restrict the use of hearsay at grand jury and
move away from the broad definitions. He shared an example of a
case he litigated.
7:29:46 PM
REPRESENTATIVE ALLARD asked whether unintended consequences
could result from Amendment 4.
MS. KEMP said the proposed amendment would limit the scope of
the evidence that could be summarized. She shared a
hypothetical example and said Amendment 4 would raise the
statutory age and provide protections for people 18 years old
and under.
7:31:04 PM
REPRESENTATIVE GRAY shared his understanding that hearsay is
allowed in thirty other states. He asked whether that is
correct.
MS. KEMP acknowledged that many states [allow hearsay], adding
that Alaska is in the minority in terms of the preclusion of
admissible evidence.
REPRESENTATIVE GRAY asked how many states have hearsay
allowances as broad as in HB 67, as amended.
MS. KEMP did not know the answer.
REPRESENTATIVE GRAY asked Ms. Kemp to name a state that allows
all hearsay evidence.
MS. KEMP listed Alabama, Kentucky, Delaware, Maine, Mississippi,
New Jersey, North Carolina, Ohio, as states that allow a broad
spectrum of hearsay similar to HB 67, as amended.
7:33:51 PM
REPRESENTATIVE C. JOHNSON requested the definition of hearsay.
MS. KEMP defined "hearsay" as an out-of-court statement offered
to provide the truth of the matter asserted.
REPRESENTATIVE C. JOHNSON asked whether video testimony is
considered hearsay.
MS. KEMP said currently, grand jury rules allow for telephonic
participation in some scenarios. She added that the idea behind
the legislation is to avoid someone having to come to court and
re-live a traumatic experience.
REPRESENTATIVE C. JOHNSON emphasized that hearsay is real audio
or video testimony, not "bar talk."
CHAIR VANCE asked what the federal government allows in court
for hearsay.
MS. KEMP explained that the federal government allows witnesses
to summarize admissible testimony, much like the goal of the
bill.
7:38:52 PM
REPRESENTATIVE GRAY posed several hypotheticals involving
conversations taking place at a bar and asked whether they would
be considered hearsay.
MS. KEMP explained that if someone were a percipient witness to
a confession, other exceptions could be introduced. In response
to a follow up question, she acknowledged that regardless of HB
67, as amended, there are still evidentiary vehicles to
introduce certain hearsay.
7:41:10 PM
The committee took a brief at-ease.
7:41:27 PM
A roll call vote was taken. Representative Groh voted in favor
of Amendment 4. Representatives Gray, Allard, Carpenter, C.
Johnson, and Vance voted against it. Therefore, Amendment 4
failed by a vote of 1-5.
7:42:28 PM
CHAIR VANCE encouraged members of the public to read the intent
language that is attempting to protect the rights of victims by
not requiring them to come before the grand jury and be
retraumatized.
7:43:43 PM
REPRESENTATIVE ALLARD moved to report HB 67, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 67(JUD) was
reported from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 67 - Amendment #6 (A.23) by Rep. Carpenter.pdf |
HJUD 3/4/2024 1:00:00 PM |
HB 67 |
| HB 67 - Amendment #7 by Rep. Vance.pdf |
HJUD 3/4/2024 1:00:00 PM |
HB 67 |