Legislature(2013 - 2014)CAPITOL 120
04/04/2014 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s)|| Board of Governors of the Alaska Bar | |
| SB187 | |
| HB282 | |
| SB64 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 187 | TELECONFERENCED | |
| += | SB 64 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| += | HB 282 | TELECONFERENCED | |
SB 187-CONFIDENTIAL INFORMATION: MISCONDUCT, RLS
1:16:28 PM
CHAIR KELLER announced that the next order of business would be
CS FOR SENATE BILL NO. 187(JUD)(title am), "An Act relating to
the crime of misconduct involving confidential information in
the first degree; amending Rule 16, Alaska Rules of Criminal
Procedure; amending Rule 8, Alaska Child in Need of Aid Rules;
and providing for an effective date."
[Before the committee was CSSB 187(JUD)(title am).]
1:16:44 PM
RYNNIEVA MOSS, Staff, Senator John Coghill, Alaska State
Legislature, directed attention to a proposed House committee
substitute (HCS) for committee substitute (CS) for SB 187, found
in the committee packet. Ms. Moss said SB 187 was the result of
an incident last year in Alaska in which the videotaping of a
confidential interview of a sexual abuse case ended up in the
hands of relatives and was subsequently broadcast on the
Internet. The proposed legislation would amend Alaska Statutes
and three court rules. Firstly, AS 11.76.113 Misconduct
involving confidential information in the first degree, would be
amended to add an offense for a person who publishes or
distributes an audio or video recording of an interview of a
child for a criminal or child protection investigation, or
records of a medical examination of a victim or a minor
conducted for the purposes of an investigation under AS 11.41,
or a child protection investigation, including photographs taken
during the examination. Exceptions in proposed section 2 are
for publishing or distributing with a court order, with a rule
of court, or a state or federal law. There is also an exception
for training law enforcement, prosecutors, or defense
counselors, if the minor or victim's identity is concealed. In
addition, this information could be utilized with a release of
consent from an adult victim, an emancipated minor, or the
minor's parent or guardian if the parent or guardian is not the
perpetrator.
MS. MOSS continued to proposed section 3, which amends rule
16(d)(3) of Alaska Rules of Criminal Code, to include this crime
as evidence that cannot be in the physical custody of the
defendant.
1:19:25 PM
REPRESENTATIVE LYNN moved to adopt the proposed House committee
substitute (HCS) for CSSB 187(JUD)(title am), Version 28-
LS1145\P, Strasbaugh, 4/3/14, as the work draft. There being no
objection, Version P was before the committee.
MS. MOSS directed attention to page 4 of the work draft, stating
that section 3 of the proposed legislation emphasizes that when
defendants do not have counsel they have physical custody of
this [confidential] information, but if they share the
information, it is punishable by contempt of court and requires
that the court inform the defendant that sharing the information
constitutes a criminal offense.
MS. MOSS explained that section 4 adds to court rule 16(d), that
when evidence is submitted to the court, it must be in an
envelope sealed and marked "confidential." She advised that the
sponsor has worked closely with the Department of Law (DOL), the
Public Defender Agency, (PDA), the Department of Administration
(DOA), and the Office of Public Advocacy (OPA), DOA, on section
5, which amends Direct Court Rule Amendment, Rule (8), Alaska
Child in Need of Aid Rules (CINA). The purpose of this change
is to ensure that the information is confidential and out of the
reach of the defendant, but to also have access to medical
records when medical records are needed for medical treatment.
For example, in a child abuse case where a child is physically
injured by a parent and medical records are needed for a
physician to treat the child. Section 5 also "mirrors" rule
(16), by informing the "pro se parent" that if the information
is shared with anyone, that would constitute a criminal crime,
and allows for confidential filing in an envelope sealed and
marked "confidential."
MS. MOSS further explained the proposed legislation addresses
evidence for crimes under AS 11.41.410-11.41.450 which are
sexual assault in the first, second, third, and fourth degrees,
sexual abuse of a minor in the first, second, third, and fourth
degrees, and incest. She directed attention to the conceptual
amendment which addressed the language of the bill on page 4,
line 30.
1:22:54 PM
REPRESENTATIVE LYNN moved to adopt Conceptual Amendment [1] to
Version P, which read as follows [original punctuation
provided]:
Page 4, line 30, after the word "records"
Insert:
"that are also evidence under AS 11.41.410-11.41.450"
Page 4, line 31-Page 5, line 1, after the words "AS
47.10.011 or AS 47.14.300":
Delete:
"that is also evidence for an investigation under AS
11.41.410-11.41.450"
1:23:18 PM
CHAIR KELLER objected for the purpose of discussion.
MS. MOSS stated Conceptual Amendment 1 was suggested by Quinlan
Steiner, director of the Public Defender Agency, for the purpose
of clarifying that the video and audio recordings and medical
records are only connected to investigations involving the
aforementioned crimes.
REPRESENTATIVE LEDOUX read from the proposed HCS, on page 4,
beginning on line [14] as follows:
The clerk shall inform the defendant ... that
violation of the order issued under this paragraph is
punishable as contempt of court and may also
constitute a criminal [offense].
REPRESENTATIVE LEDOUX questioned why not say, "and also
constitutes a criminal [offense]."
1:26:17 PM
EMILY WRIGHT, Assistant Attorney General, Child Protection
Section, Civil Division(Juneau), Department of Law, advised that
this language is covered under the criminal rule of procedure
16(d)(3). She observed the term "may" leaves the question of
criminality up to a jury thus "this is an advisement that a
judge would be giving to ... a defendant."
REPRESENTATIVE LEDOUX further questioned whether a judge would
tell a defendant, "this may constituent a crime [instead of]
this is a crime."
MS. MOSS cautioned that the language is permissive because there
could be a situation that arises in which the evidence "gets
into somebody else's hands through no action of the defendant."
CHAIR KELLER clarified for the record that he removed his
objection to Conceptual Amendment 1. There being no further
objection, Conceptual Amendment 1 was adopted.
REPRESENTATIVE LEDOUX returned attention to page 4, lines 14-17,
and pointed out that "may" is not used in the admonishment to
the defendant regarding a contempt of court, which is
inconsistent with the admonishment regarding a criminal offense.
MS. MOSS said the sponsor is open to discussion on a possible
change.
CHAIR KELLER opined that it is best to leave the word "may."
1:31:44 PM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Central Office, Criminal Division, Department of Law,
stated that the proposed change is to a court rule which does
not set out elements of the offense of any crime. Therefore,
conduct that is covered under subparagraph (D), page 4, may
include other conduct than that which is prohibited under the
proposed new crime. She advised that using "may" is the
cautious approach and ensures that the person is forewarned
about the seriousness of his/her conduct.
REPRESENTATIVE LEDOUX accepted the opinion from DOL.
REPRESENTATIVE GRUENBERG further discussed the parameters of
court rules. He concurred with Ms. Carpeneti.
REPRESENTATIVE LEDOUX then asked for details on the incident
that prompted SB 187.
MS. MOSS said the attorney gave the videotape to a relative, who
gave it to another relative who was upset about the situation
and posted it on the Internet.
1:34:07 PM
REPRESENTATIVE GRUENBERG surmised the proposed new crime is
directed at the following two sets of circumstances: A document
in the hands of a prosecutor or defense attorney in a criminal
case "gets out," or in a Child in Need of Aid (CINA) case. From
his experience practicing family law, he asked whether a family
law case, such as a custody case, could be covered by the
proposed bill. He suggested a provision that would state, "That
if somebody releases this in violation of a custody order or an
order involving child visitation ... something like that, in a
private context also." Representative Gruenberg observed that
this situation can come up in a private custody dispute.
MS. MOSS said the proposed bill as written only applies to
evidence in the aforementioned criminal cases. In further
response to Representative Gruenberg, she said the proposed
legislation applies to CINA cases when there are criminal
charges.
REPRESENTATIVE GRUENBERG pointed out there is a provision that
the attorney cannot share certain information with his own
client.
MS. MOSS directed attention to page 3, lines 2-4 which read [in
part]:
The materials listed in this paragraph shall not be
provided to the defendant, but the information in the
materials may be shared with the defendant to the
extent necessary to prepare the defense of the case
MS. MOSS concluded that the defendant cannot have physical
custody of the materials.
1:37:14 PM
REPRESENTATIVE GRUENBERG questioned whether this restriction may
be permissible under the Alaska Bar Rules of the Alaska Court
System. He then directed attention to page 5, lines 27-28, and
asked whether the sponsor would consider a change from "treating
physician" to "health care professional" in order to be more
inclusive.
MS. MOSS responded to Representative Gruenberg's earlier
question saying that the proposed legislation includes child
protection investigations, but does not include child custody
investigations, thus that distinction may require clarification.
Returning to "treating physician" on page 5, lines 27-28, she
agreed with the point raised by Representative Gruenberg.
1:40:17 PM
REPRESENTATIVE MILLETT read from page 5, lines 26-28 as follows:
Notwithstanding another provision of this section, the
legal custodian of a child may provide records of a
medical examination of a child to the child's treating
physician ....
REPRESENTATIVE MILLETT asked whether the treating physician
"could be anybody - it could be the ER ... - that is a licensed
medical professional."
MS. MOSS expressed her belief the possibilities include a nurse
or someone in a health clinic, or a dentist.
REPRESENTATIVE MILLETT asked whether medical testimony from
nurses, physician assistants (PAs), or advanced nurse
practitioners (ANPs) has been used in previous cases or if all
testimony pertaining to child abuse in CINA cases is from a
medical doctor (MD). She expressed her understanding that this
testimony was required to come from none other than an MD.
MS. MOSS was unsure.
REPRESENTATIVE GRUENBERG, speaking from his experience in many
cases, said that if a child appears to be the victim of rape, an
advanced nurse practitioner becomes involved.
REPRESENTATIVE MILLETT related that advanced nurse practitioners
conduct rape kit tests. She stressed that her question is
whether testimony from an MD is required in a child abuse case
that does not involve rape.
1:42:01 PM
[SB 187 was heard and held.]