Legislature(1995 - 1996)
02/06/1995 01:30 PM Senate 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
SJUD - 2/6/95
SENATOR TAYLOR announced the committee would be discussing Work
Draft F of SB 10.
SENATOR LEMAN, sponsor of SB 10, informed committee members that
the original intent of SB 10 was to adopt the comparable federal
rule that corresponds to Alaska Rule 16. However, that cannot be
done, therefore the committee substitute addresses the issue from
a different perspective. This rule revision would allow the
prosecution to obtain information from the defense, and make it
comparable to what the defense is able to get from the prosecution.
This idea originated at the Crime and Corrections hearing last fall
in Anchorage. Former District Attorney Ed McNally raised this
issue as one that needed revision to create a more equitable
playing field in the discovery of information.
SENATOR TAYLOR announced to those testifying on SB 10 that no
action would be taken on the bill until those interested have had
the opportunity to review Work Draft F.
DEAN GUANELI, Assistant Attorney General, reviewed Work Draft F of
SB 10 for committee members. He explained the discovery rules
allow the defense access to all evidence generated by the
prosecution, but the prosecution does not have access to
information generated by the defense. SB 10 would correct that
situation by making discovery full and fair on both sides. The
Department of Law has been attempting, for a number of years, to
get changes to the discovery rules through the Criminal Rules
Committee appointed by the Supreme Court without success. The
Criminal Rules Committee has made minor changes to the discovery
rule, some of those changes are incorporated in SB 10.
Essentially, Work Draft F provides a two-tiered system of
discovery. Tier 1 would require the prosecution to turn certain
types of information over to the defense (page 1, line 11 through
page 2, line 13). This information is constitutionally required
and would show that the defendant is innocent. Grand Jury material
would also be given to the defense, as well as information required
by state statute. Simultaneously, the defense would be required to
release information about the defenses it intends to raise. If the
defense wants more information, such as witness statements and
names and addresses of experts, it must agree to provide the
prosecution with similar information. This would be the second
tier of Discovery and would be an option the defense could choose
to pursue. The defense would waive Fifth Amendment rights when
opting into Tier Two. That structure maintains constitutionality
given the Supreme Court's Scott Decision. Other changes in Work
Draft F move sections to pages 7 and 8 to renumber existing
sections. Mr. Guaneli stated the change would provide full and
fair discovery on both sides. The Alaska Supreme Court has amended
its civil rules so that mandatory discovery is required on both
sides. When both sides are equally informed, fairer and more just
results will occur as a result of litigation. It also allows
fairer results in pretrial resolution of a matter.
SENATOR TAYLOR asked whether the provision that requires the
disclosure of physical evidence would abridge a person's Fifth
Amendment right since the evidence would be used against the
defendant. Mr. Guaneli replied that specific provision was
recommended by the Criminal Rules Committee as the defense attorney
is ethically obligated to turn over physical evidence in their
possession. The Fifth Amendment guarantee is protected by the
provisions beginning on page 2, line 3. He explained in many cases
the defense attorney will turn over the murder weapon to the police
but will not disclose the source.
SENATOR TAYLOR noted if the client reveals evidence to his/her
attorney, the attorney would be required to advise the client to
turn the evidence over, otherwise the attorney would be an
accomplice to the crime. Under current law, and the provisions of
SB 10, the attorney is not required to disclose the source of the
evidence. Mr. Guaneli stated the evidence can be used if the
prosecution can establish, through independent means, it is
relevant to the case, i.e. through fingerprints.
Number 429
SENATOR GREEN asked if the defense is not required to provide the
prosecution with any information under the current system. Mr.
Guaneli responded the defense is currently required to disclose the
names of expert witnesses that the defense intends to use at trial.
SENATOR TAYLOR asked if SB 10 might prevent the defense from hiring
experts and cause them to utilize other devices. Mr. Guaneli felt
some defense attorneys might not choose to opt into these
provisions, although most find expert testimony very useful in
particular types of cases.
SENATOR TAYLOR stated the current system that requires the
prosecution to disclose information occurred through court
decision. He asked if changes to discovery rules have been made in
other states. Mr. Guaneli replied the State of Florida has the
two-tiered system and about 99 percent of the defendants opt into
that system, and California has a similar provision which may have
been changed through a constitutional amendment. SENATOR TAYLOR
asked if that is why Judge Ito took the exceptional step of
allowing the prosecution a second opening argument because of a
violation by the defense regarding the list of witnesses and asked
if that would not be a violation under Alaska's current rule. Mr.
Guaneli noted it would not, but some judges have tried to require
the defense to list witnesses at the beginning of the trial. He
noted that Alaska has a relatively small jury pool, and witnesses
and jurors may be familiar with each other. Early disclosure of
witness lists would prevent problems arising from that familiarity.
SENATOR TAYLOR acknowledged that occurrence and stated that is one
reason why changing the rule may be of benefit to the system. He
noted this issue is important and requires a thorough review.
Number 498
JOHN SALEMI testified on SB 10. He felt, from the defense's
perspective, there is a need for an adjustment to the current
discovery rules used by the Alaska courts. There are isolated
incidents when the prosecution is not given adequate notice,
especially in regard to expert witnesses. He supports changing the
rule to require the defense to provide adequate notice of expert
witnesses and the nature of their testimony. He expressed concern
that SB 10 may have unintended negative consequences for the
Criminal Justice System. He noted the playing field is not tilted
in favor of defendants because the State has more money to
prosecute cases. The discovery rule is one of the few areas where
the defense can evaluate the prosecution's case and make decisions.
Mr. Salemi felt Alaska has enormous resources at its disposal to
investigate crime and arrest people, and to prosecute them for
purported criminal acts. He explained that the State of Alaska
system of justice is very tough on crime. There has been a plea
bargaining ban for the past 20 years and Alaska has had the
toughest mandatory sentencing laws in the country for the past 14 -
15 years. He felt that despite the hostile environment for people
convicted, only six percent of mandatory sentence cases that are
prosecuted are tried; the other 94 percent result in guilty or no
contest pleas. He felt that is a good statistical indication that
the system is working. He stated most trials are straightforward
regarding who will be called to testify, and in many cases the
defense does not call any witnesses because the State has the
burden of proof. Mr. Salemi conceded that the prosecution has been
"ambushed" in cases, but that has occurred in a very small number
of cases. The Public Defender Agency lawyers view the playing
field as fair and not tilted in favor of defendants. Anyone can be
arrested and jailed whether guilty or not, therefore the defendant
should know what the case against him/her is about.
Regarding the two-tiered system, Mr. Salemi stated in the first
tier, the defense would be allowed limited discovery; in the second
tier the defense would opt in but the exchange of information would
be reciprocal. He explained that under Florida's system, the
defense decides whether to give up the Fifth Amendment right, but
in SB 10, the defendant, with no legal training, would be required
to give up that right. He said Public Defender clients do not
often trust their attorneys since they had no choice in hiring
them. No other state requires the defendant to give up that
constitutional right. If this rule is revised, there will be a
percentage of cases in which discovery will be limited, preventing
the defense from fully evaluating the case. This will increase the
likelihood that the defendant will make an erroneous decision which
will result in a trial case when they should have entered a plea
and cut their losses. Mr. Salemi feared the rule change could
raise game playing in criminal prosecution cases to a higher level.
Mr. Salemi felt the prosecution should be entitled to more notice
and more information about proposed experts called by the defense
and they should be given notice of all affirmative and statutory
defenses the defense intends to use. He also felt the names of
alibi witnesses should be provided to the prosecution. Regarding
the fiscal impact on the Public Defender Agency, of the 13 offices,
5 do not have investigators. If this bill passes, those offices
would need at least one investigator in each office.
Number 496
SENATOR TAYLOR requested Mr. Salemi to send information to the
committee, prior to Wednesday, regarding the areas provided in the
bill that would create an improved working relationship between
prosecution and defense attorneys. He also requested information
regarding mutually exclusive affirmative defenses. He expressed
concern that the bill sets up a situation in which a defendant
would have to waive his/her Fifth Amendment right in order to
receive what was previously ordered as normal discovery. He wanted
to provide assurances that neither side would be entrapped in a
difficult position, nor did he want to set up a situation that
would be promptly appealed to the Supreme Court.
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