05/14/2003 01:41 PM House FIN

HOUSE BILL NO. 244                                                                                                            
                                                                                                                                
     "An Act relating to the Code of Criminal Procedure;                                                                        
     relating to defenses, affirmative defenses, and                                                                            
     justifications  to certain  criminal  acts; relating  to                                                                   
     rights   of   prisoners   after  arrest;   relating   to                                                                   
     discovery,   immunity   from  prosecution,   notice   of                                                                   
     defenses, admissibility  of certain evidence,  and right                                                                   
     to representation  in criminal proceedings;  relating to                                                                   
     sentencing,   probation,   and   discretionary   parole;                                                                   
     amending  Rule 16, Alaska  Rules of Criminal  Procedure,                                                                   
     and  Rules  404, 412,  609,  and  803, Alaska  Rules  of                                                                   
     Evidence; and providing for an effective date."                                                                            
                                                                                                                                
Vice-Chair   Meyer  MOVED   Amendment  #1:   work  draft   23                                                                   
GH1024|D.1,   dated    5/14/03.   Representative    Berkowitz                                                                   
OBJECTED.                                                                                                                       
                                                                                                                                
ANNE CARPENETI,  ASSISTANT ATTORNEY  GENERAL, LEGAL  SERVICES                                                                   
SECTION,  CRIMINAL  DIVISION,  DEPARTMENT  OF  LAW  discussed                                                                   
changes proposed  by the amendment. She noted  that Amendment                                                                   
1 would change  defense for "heat of passion"  charges from a                                                                   
defense  that  the state  is  obliged  to disprove  beyond  a                                                                   
reasonable doubt  to an affirmable defense,  which the person                                                                   
claiming the defense  is obliged to prove by  a preponderance                                                                   
of evidence. "Heat of passion"  only applies to murder in the                                                                   
first degree and murder in the  second degree, and only works                                                                   
to  reduce  the  charge  to  manslaughter.   Under  "heat  of                                                                   
passion" a person  claims that they acted in  such excitement                                                                   
aroused  by the  intended  victim that  they  were unable  to                                                                   
prevent  the crime.  The claim  is that  a homicide  occurred                                                                   
during a  situation beyond  one's control.  It is similar  to                                                                   
temporary  insanity.  The  person  committing  the  crime  is                                                                   
unable to  control him or herself,  and thus feels  that they                                                                   
should be charged  with manslaughter rather than  murder. She                                                                   
noted that  in Alaska,  insanity is  an affirmative  defense,                                                                   
which the defendant  has to prove through a  preponderance of                                                                   
the evidence. She spoke in support of the shift.                                                                                
                                                                                                                                
Representative Berkowitz pointed  out that the presumption of                                                                   
innocence and burden of proof  are the two essential precepts                                                                   
in any  trial. He  maintained that  the amendment would  turn                                                                   
these  precepts  on  their  head.   He  maintained  that  the                                                                   
amendment overturns this premise and spoke against it.                                                                          
                                                                                                                                
Vice-Chair Meyer asked if the  "heat of passion" placed these                                                                   
cases in  the same vein  as an insanity case.  Representative                                                                   
Berkowitz  explained  that  there  are  two  parts  of  doing                                                                   
something  illegal; there  needs to  be a guilty  mind  and a                                                                   
guilty act. When there is an insanity  defense the guilty act                                                                   
is conceded. An  insanity situation is distinct  from a "heat                                                                   
of  passion" defense.  He  noted that  the  State would  have                                                                   
prior knowledge of a "heat of  passion" defense and should be                                                                   
able to  prove its case.  Vice-Chair Meyer maintained  that a                                                                   
defendant  should  be  required   to  prove  that  they  were                                                                   
irrational in the heat of passion.                                                                                              
                                                                                                                                
In response  to a  question by  Representative Kerttula,  Ms.                                                                   
Carpenti confirmed  that "heat of passion" is  not equivalent                                                                   
to insanity. Representative  Kerttula asked if  the burden of                                                                   
proof remained the  same. Ms. Carpenti noted  that the change                                                                   
would  be to  an affirmative  defense. She  noted that  other                                                                   
things,  such  as duress,  support  an  affirmative  defense,                                                                   
since  the  defendant is  in  a  better position  to  provide                                                                   
information about the situation.                                                                                                
                                                                                                                                
Representative Kerttula  pointed out that if  the defense had                                                                   
not been raised, then it would  not have been the same burden                                                                   
on the defendant.  Ms. Carpenti noted the State  is currently                                                                   
obliged  to  disprove  it  beyond  a  reasonable  doubt.  The                                                                   
amendment  would  require  the   defendant  to  prove  it  by                                                                   
preponderance of evidence and  the charge would be reduced to                                                                   
manslaughter.                                                                                                                   
                                                                                                                                
In response  to a  question by  Representative Whitaker,  Ms.                                                                   
Carpenti noted that a defense  places the burden on the State                                                                   
to prove  the guilt  of a defendant,  whereas an  affirmative                                                                   
defense  places  the  burden   of  proof  on  the  defendant.                                                                   
Representative Whitaker  observed that it amounted  to a case                                                                   
of life and  death and stated that he was  uncomfortable with                                                                   
an  amendment   of  this  magnitude  being  heard   in  these                                                                   
conditions.                                                                                                                     
                                                                                                                                
Representative  Foster observed that  he had experienced  the                                                                   
weight of the  government under indictment. He  asserted that                                                                   
most citizens couldn't afford to defend themselves.                                                                             
                                                                                                                                
HB  244  was   heard  and  HELD  in  Committee   for  further                                                                   
consideration.