Legislature(2021 - 2022)BUTROVICH 205
03/31/2022 03:30 PM Senate STATE AFFAIRS
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s) | |
| HB187 | |
| SB188 | |
| HB123 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 187 | TELECONFERENCED | |
| *+ | SB 188 | TELECONFERENCED | |
| += | HB 123 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 188-CRIM PROCEDURE; CHANGE OF NAME
4:07:15 PM
CHAIR SHOWER reconvened the meeting and announced the
consideration of SENATE BILL NO. 188 "An Act relating to
criminal law and procedure; relating to a petition for a change
of name for certain persons; relating to procedures for bail;
relating to consecutive sentencing for violation of condition of
release; relating to the duty to register as a sex offender;
amending Rules 6(r) and 47, Alaska Rules of Criminal Procedure;
amending Rule 12, Alaska Delinquency Rules; amending Rule 84,
Alaska Rules of Civil Procedure; and providing for an effective
date."
CHAIR SHOWER listed the individuals available to answer
questions and asked Kaci Schroeder to introduce the bill.
4:08:41 PM
KACI SCHROEDER, Assistant Attorney General, Criminal Division,
Department of Law, Juneau, Alaska, stated that SB 188 does four
things, and she would discuss them in the following order:
1) It deals with name changes for people involved in the
criminal justice system;
2) It amends the bail statutes;
3) It amends the role of the grand jury regarding presenting
hearsay at grand jury; and
4) It amends the Plain-Error Rule for cases that go on appeal.
MS. SCHROEDER explained that SB 188 requires people under the
jurisdiction of the Department of Corrections (DOC), to notify
that department and the Department of Public Safety if they are
required to register as a sex offender, and the Court System
when they want to change their name. Currently neither
department routinely receives this notice which makes it
difficult to track these people and difficult for victims to
track individuals as they move through the criminal justice
system. The bill asks people who are not charged with a crime
but want to change their name, to notify the Court System and
identify the case so the court knows the person is involved in
the criminal justice system. With this information and
notification, the court will evaluate the request to change a
name based on criteria that ensures the request is not made for
a fraudulent purpose or to evade law enforcement.
4:10:29 PM
MS. SCHROEDER explained that SB 188 changes the bail statutes in
the following ways:
• Defendants must give the prosecutor 48-hour notice when
seeking a bail review hearing so the prosecutor can
provide meaningful notice to victims who have a right to
participate in bail hearings.
• Judges are required to provide written findings for the
bail and conditions they order. This will provide a
written record, whereas the current process is to check a
box and give the order orally, which is more difficult to
track and may not be as clear as it would if it were in
writing.
• There is a rebuttable presumption that somebody who has
violated conditions of release in the past, poses a risk
to the victim or the community or that they won't appear.
In the law, a rebuttable presumption is a strong
suggestion from the legislature that something needs to
change. It is not a presumption of no release; it is just
that the person poses a risk and something needs to
happen to address that risk.
• Consecutive sentencing is addressed. When somebody
violates their conditions of release, that can trigger a
new criminal charge called violating conditions of
release. The current system creates the potential for a
revolving door of arrest, bail, release, violation of
conditions, and the cycle repeats. This is a drain on
resources and it jeopardizes public safety when someone
is unwilling to comply with conditions.
Sometimes the court will run the sentences concurrently
when there is an underlying crime as well as several
violations of conditions of release. SB 188 says that
when that happens, there must be some additional sanction
for each violation of conditions of release.
4:14:29 PM
MS. SCHROEDER said the third thing SB 188 does is allow
witnesses to summarize the testimony of other witnesses at grand
jury, which is the charging phase of the case. The current
process requires every witness to go to grand jury to offer
their own testimony and this has to happen within 10 days after
a person is arrested. This means that the victim who has already
given their statement to law enforcement has to relive that
event days later when they recount their story in a room full of
strangers.
SB 188 provides that, at the prosecutor's discretion and based
on the case, one person or a couple may go to grand jury and
summarize the testimony of other witnesses. This would be less
traumatizing for the victim and it would streamline and speed up
the process. This does not change the fact that all the witness
must be available at trial and for cross-examination.
4:16:06 PM
MS. SCHROEDER said SB 188 seeks to return the Plain Error Rule
to what it was pre-2011. An appeal in a criminal case
historically started with an objection, which preserved the
issue on appeal except when the error was plain. Historically an
error was plain if it affected substantial rights, was obvious,
had a prejudicial effect, and the decision not to object was not
tactical.
Beginning in 2011 a series of cases were handed down that
reinterpreted the rule and shifted the burden of proof from the
defendant to show prejudice to the state to prove the error was
harmless beyond a reasonable doubt. The cases also redefined the
word "obvious" to include things that are truly debatable.
Furthermore, the court will only find that a failure for counsel
to object was tactical if the record is clear that it was
tactical. The result has been that more cases are taken up on
appeal. Now more cases have to be defended on appeal,
convictions are jeopardized, the system is less fair, and it's a
drain on resources. SB 188 would restore the Plain Error Rule to
what it was pre-2011 and provide more finality for victims.
4:19:40 PM
SENATOR COSTELLO asked for examples of what conditions of
release might include. She also asked her to discuss the
significance of a grand jury indictment and the influence it has
on the outcome of a trial.
MS. SCHROEDER said conditions of release are tailored to both
the case and the defendant and might include such things as no
contact with the victim and no alcohol consumption. The
rebuttable presumption is a strong suggestion from the
legislature that this situation must be addressed. The court
might respond by requiring the person to engage in a 24/7
sobriety program that requires daily screening. The idea is to
adjust the conditions to ensure the individual can comply and
public safety is preserved.
To the question about the grand jury, she said the constitution
requires all felony cases to be brought before a grand jury, but
she didn't know the conviction rate in those cases.
SENATOR REINBOLD expressed concern about people who are under
conditions of release and have had their trials delayed due to
Covid-19.
MS. SCHROEDER said the prosecutor or the defense attorney can
always ask the court to adjust the conditions of release, and
the courts are considering trial delays and restrictions on
people's liberty so that too is an avenue to seek an adjustment.
She added that SB 188 proposes to make the system more efficient
in getting indictments and addressing the backlog.
4:24:28 PM
CHAIR SHOWER said he may circle back to this topic.
SENATOR REINBOLD said the case she referenced did not have a
change in circumstance. She also said she didn't care for the
use of the term hearsay.
MS. SCHROEDER said hearsay is the term that is used under the
law. Regarding additional bail hearings, it is not uncommon for
attorneys to request a bail hearing to argue for a change when
somebody has complied for a long time.
4:25:59 PM
SENATOR REINBOLD asked if the hearings can take place online
since the courts have been closed.
MS. SCHROEDER said yes, and criminal hearings take priority.
CHAIR SHOWER asked Angie Kemp if she could answer Senator
Costello's question.
4:26:27 PM
ANGIE KEMP, Director, Criminal Division, Department of Law,
Anchorage, Alaska, said she wasn't aware of statistics on the
conviction rates following a grand jury indictment.
CHAIR COSTELLO said her reason for asking was to fully
understand the significance of a grand jury indictment to all
the people that are involved in the case. She said she assumes
that allowing hearsay would result in a faster indictment from
the grand jury, but this raises concerns about the accuracy of
hearsay witnesses and whether the accused would have the ability
to mount a proper defense.
MS. KEMP agreed that it was correct to suggest that the grand
jury indictment is a significant event in the process. It is
akin to the probable cause finding, which is one phase among
many, but once there is an indictment the victim is informed
that the case is moving forward to superior court.
CHAIR SHOWER asked Ms. Meade if she had anything to add.
4:29:50 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, Anchorage, Alaska, stated that
over the past four years between 2,500 and 3,000 cases have gone
to grand jury and in about 99 percent of those cases the grand
jury returned an indictment. That left about one percent of
cases that did not result in indictment.
CHAIR SHOWER asked if she would agree that the data shows that
prosecutors are doing a good job of presenting the data in a
case and are getting high rates of indictments.
MS. MEADE replied the data indicates that nearly all the cases
the prosecutor decides to take to grand jury result in an
indictment.
CHAIR SHOWER said that's important information for the record
because it counters the public perception that criminals often
go free.
MS. MEADE clarified that the 2,500 to 3,000 cases that went to
grand jury are far fewer than the total number of felonies that
were filed. These are only the ones that the prosecutor decided
to take to a grand jury.
CHAIR SHOWER said he understands that, but the data does
highlight that the prosecutors have a high rate of success on
those cases they decide to take forward.
4:32:57 PM
SENATOR COSTELLO asked what the conviction rate was on those
indictments.
MS. MEADE said she didn't have that information and wasn't
certain it was available. She asked if would help to know that
in felony cases, about one-third are dismissed by the
prosecutor, about two percent go to trial, and about 68 percent
are resolved through a guilty plea.
SENATOR COSTELLO said she was trying to understand the end
result of allowing hearsay because she would assume that
allowing family and loved ones to serve as a witness would make
it easier to get a grand jury indictment.
4:34:50 PM
MS. MEADE agreed that a reason to allow hearsay is to make it
easier to get an indictment. The data shows an indictment
usually results from a grand jury, although Ms. Schroeder said
it would be faster and more efficient to allow hearsay.
CHAIR SHOWER noted that both Senator Reinbold and Senator
Costello were very strong advocates of victim rights, and both
worked to repeal Senate Bill 91.
SENATOR REINBOLD asked her to clarify the definition of hearsay
in criminal law.
MS. MEADE replied it is a well understood term in the field of
law. The standard definition is, "An out of court statement
offered for the truth in the matter asserted in that statement."
Because it's out of court the true source of the statement is
not examined.
4:37:56 PM
CHAIR SHOWER asked if this ties into the right of the defendant
to face their accuser.
MS. MEADE replied that is the underpinning of the hearsay rule
so it's possible to talk to and examine the source of the issue.
For example, if the bill passes and hearsay is permitted, the
prosecutor would be able to introduce a police report that says
what happened as opposed to producing the people who told the
police about the matter that was put in the police report.
Allowing hearsay would streamline the process because in that
example, the officer reading the report would be the only one to
present what happened. She said Ms. Schroeder would point that
out later in the proceeding or at trial the defendant would have
a chance to examine the people who gave the police the
information that went into the report. Hearsay is not permitted
at that point unless there is one of the exceptions.
CHAIR SHOWER asked for assurance that throughout the process the
defendant would have the right to cross examine the people who
gave the information that went into the police report.
MS. SCHRODER replied,
That's correct. There is no confrontation, and I think
that's what you're describing - the right to cross
examine witnesses etcetera. That does not occur at
grand jury as Ms. Meade has described. The grand jury
proposal only changes the hearsay aspect of grand
jury. The defendant would still be able to review the
record of the grand jury, challenge the record, file
motions to dismiss. It happens all the time, and they
would still be able to do that. We would still need to
bring all of the witnesses in at trial for that
confrontation, the confrontation clause so that the
defendant could cross examine those witnesses.
CHAIR SHOWER said that was helpful.
4:41:56 PM
SENATOR REINBOLD spoke about how this is important for rape
victims. She noted that Ms. Meade gave a clear definition of
hearsay and asked Ms. Schroder to clarify that the Department of
Law agrees with that definition.
MS. SCHRODER concurred with Ms. Meade's description that hearsay
is defined by Court Rule; Its "an out of court statement
offered for the truth of the matter asserted."
CHAIR SHOWER asked Ms. Schroder if she wanted anyone else to
testify for the administration.
MS. SCHRODER answered no but it would be helpful to ask Ms. Kemp
if she had anything to add.
CHAIR SHOWER asked Ms. Kemp if she had testimony to offer.
MS. KEMP mentioned Senator Reinbold's concern about protecting
victims of rape and highlighted that a primary objective is
victim protection. Under the current rule a victim of child
sexual abuse is required to testify at grand jury and then at
trial.
4:45:09 PM
CHAIR SHOWER found no further questions or comments and stated
he would hold SB 188 for future consideration.