Legislature(1995 - 1996)
03/10/1995 01:45 PM House FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SENATE BILL NO. 13
"An Act relating to the admissibility of evidence and
testimony in criminal and civil proceedings; directing
the admissibility into evidence of deoxyribonucleic
acid (DNA) profiles in civil and criminal proceedings;
amending Rules 702(a) and 703 of the Alaska Rules of
Evidence to modify the rule relating to the basis or
foundation for the admissibility of expert opinion
testimony that is based on scientific evidence; and
amending Rules 401, 403, and 705 of the Alaska Rules of
Evidence."
SENATOR LOREN LEMAN testified in support of CSSB 13(JUD) am
(ct rule fld). He noted that the legislation allows the
introduction of DNA testing in civil and criminal trials.
The legislation also changes the standard of DNA evidence
from the Frye to the Daubert test. The Daubert approach is
used in federal cases. He noted that court rule changes
included in SB 13 failed to pass the Senate. He suggested
that the court rule change proposed in an amendment by
Representative Parnell be adopted. Members were provided
with Amendment 1 by Representative Parnell (Attachment 9).
Amendment 1 would remove the findings section and add back
one court rule change by amending Rule 703.
Senator Leman emphasized that the findings section of the
bill has been substantiated by expert testimony. He noted
members' intent to streamline the legislation by removing
the findings section. He stressed that removal of the
finding section does not reflect any question as to their
validity.
Senator Leman noted that without the addition of the court
rule changes DNA evidence can still be introduced in civil
or criminal trials. However, the change from the Frye to
the Daubert standard could not be made without the court
instituting the change. He asserted that the Daubert
standard is a superior method. He emphasized that DNA
testing can help absolve persons of crime.
Representative Brown questioned if the court rule has to be
expressly modified in order to be changed. She noted that
the title does not accommodate a court rule change.
(Tape Change, HFC 95-44, Side 2)
Senator Leman emphasized that the bill should have at least
one court rule change. He assured members that the Senate
will support the addition of the court rule change.
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Representative Brown asked if DNA profiles could be
introduced without having to prove their scientific
validity. Senator Leman responded that the Frye standard
requires the exercise of showing general consensus in the
scientific community. Under the Daubert standard the judge
would admit evidence on the basis of each case's scientific
validity.
Representative Brown noted that there are different ways to
type DNA samples with varying degrees of adequacy. Senator
Leman noted that methods are changing. No specific method
is identified in the legislation. The judge has the ability
to look at the evidence and determine if there is scientific
validity to the DNA evidence for each case. The test's
validity would be debated at trial. He noted that evidence
in the Simpson trial is being debated. In response to
further questioning by Representative Brown, Senator Leman
noted that the legislation states that "the evidence of a
DNA profile is admissible to prove or disprove any relevant
fact." He noted that the jury can weigh the adequacy of the
evidence along with other evidence which is presented.
Representative Brown asked if the court has addressed the
issue. Senator Leman stressed that the court will continue
with the Frye standard unless the change is made by the
Legislature. He emphasized that under the Frye standard it
costs approximately $20 thousand dollars to demonstrate
general consensus in regards to the scientific validity of
DNA testing. He observed that there is a general consensus
in the scientific community in regards to DNA typing.
In response to a question by Representative Brown, Senator
Leman explained that several experts are selected to
establish the fact of a scientific consensus in regards to
the validity of DNA testing. He emphasized that there may
not be a consensus on the accuracy for each type of testing
or the validity of a particular sample. He maintained that
the scientific community now accepts that each person has a
unique DNA print. He stressed that there is a consensus
that DNA testing is a scientifically valid procedure for
presenting evidence.
DEAN GUANELI, CHIEF ASSISTANT ATTORNEY, DEPARTMENT OF LAW
stated that there is general scientific consensus that a DNA
molecule 3exists, that it can be found in all the cells of
the body, and that it can be broken up through the
application of certain chemicals. When the parts are broken
up and analyzed they can be compared with other DNA
molecules from other individuals. He acknowledged that the
consensus as to the level of probability does not have
unanimity in the scientific community. He noted that the
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United States Supreme Court has adopted the Daubert
standard. He suggested that courts be instructed to look to
the scientific validity not the to unanimity in the
scientific community because some of the procedures are too
new to have established scientific unanimity.
Mr. Guaneli stated that judges will weigh the pertinent
factors such as the adequacy of the sampling or the
probability factor based on the defendant's subgroup. He
explained that the court has not felt it is within their
purview to change the standard. He stated that the issue is
making its way to the Alaska Supreme Court. He noted the
amount of money spent by the state to bring some of the
world's foremost experts on DNA typing to testify in serious
criminal cases. Mr. Guaneli noted that the legislation will
allow local experts to testify in regards to the scientific
validity of the test used for a particular sample. He noted
that juries will need to be educated. He emphasized that
in-state experts will be available.
JAYNE ANDREEN, DIRECTOR, COUNCIL ON DOMESTIC VIOLENCE AND
SEXUAL ASSAULT testified in support of CSSB 13(JUD) am (ct
rule fld). She stressed the impacts of DNA testing and
evidence presentations on sexual assault victims. She noted
that sexual assault is one of the lowest reported crimes.
She estimated that only 5 - 25 percent of cases are
reported. She stressed the difficulty in proving cases. In
many cases the only evidence is the victim's word against
the offender's. Victims feel victimized by the court
process. She emphasized that DNA testing provides an
additional element of physical evidence that is not
currently available. She observed that there is a higher
rate of conviction with DNA evidence in sexual assault
cases. She suggested that DNA evidence will result in a
higher reporting rate of sexual assault cases.
Representative Therriault MOVED to adopt Amendment 1. Mr.
Guaneli observed that the amendment would make the bill
identical to HB 52. He stated that the amendment will place
the test in statute rather than in the court rule. He
maintained that adoption of the amendment will support the
argument that the court should accept the change based on
the statutory directive.
Senator Leman added that the amendment removes the findings
section. He stressed that no statement is being made in
regards to the validity of the findings. The references to
discovery were also removed since they are already found in
court rules.
There being NO OBJECTION, Amendment 1 was adopted.
Representative Martin MOVED to report HCS CSSB 13 (FIN) out
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of Committee with individual recommendations and with the
accompanying fiscal notes. There being NO OBJECTION, it was
so ordered.
HCS CSSB 13 (FIN) was reported out of Committee with a "do
pass" recommendation and with four zero fiscal notes by the
Department of Law, dated 2/9/95; Department of Public
Safety, dated 2/9/95; the Department of Corrections, dated
2/9/95; and the Department of Administration.
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