03/24/1995 01:40 PM House JUD

 HB 25 - CRIMINAL DISCOVERY RULES                                            
                                                                               
 CHAIRMAN PORTER said the next order of business would be HB 25,               
 which has been before the committee previously.  There were areas             
 of concern, but he believes they have been addressed in the new CS.           
 He asked the sponsor to introduce the new CS and explain it.                  
                                                                               
 Number 630                                                                    
                                                                               
 RICHARD VITALE, Administrative Assistant to Representative Sean               
 Parnell, sponsor of House Bill 25, came before the committee.  He             
 noted Representative Parnell was at another committee meeting.                
 Mr. Vitale called the committee's attention to Draft H of the bill,           
 which is a departure from the last version which was an opt-in                
 version to discovery.  Mr. Vitale stated that Draft H attempts to             
 go about it in a slightly different way, which the American Bar               
 Association has endorsed, and many states have been going in this             
 direction.  It is full and open reciprocal discovery exempting only           
 defendant statements, which protects their rights to self-                    
 incrimination.  He asked that Mr. Dean Guaneli of the Department of           
 Law speak to direct questions about the bill and what it does.  Mr.           
 Vitale said he wouldn't give a history or explanation as this                 
 information is included in the committee packets.                             
                                                                               
 CHAIRMAN PORTER stated there were people to testify, two of them on           
 the teleconference network.                                                   
                                                                               
 MR. VITALE referred to working with other parties and said he has             
 worked with counsel, prosecutors and public defenders.  Ninety-nine           
 percent of the bill reflects that everybody is pretty much on line.           
 He noted John Salemi with the Public Defender's Office still had              
 one concern but he felt it could be dealt with in another                     
 committee.  There was no logical solution to everybody's concerns,            
 but he was comfortable with the bill being passed out as it is now.           
 An unidentified speaker asked to hear about Sections 2, 3, and 4.             
                                                                               
 Number 690                                                                    
                                                                               
 DEAN GUANELI, Chief Assistant Attorney General, Criminal Division,            
 Department of Law, said he would summarize where the bill has been            
 changed and perhaps help the committee understand why the                     
 provisions are needed.  He stated the initial version of the bill             
 was essentially the federal rule on discovery, which appears to               
 give information to both sides but doesn't.  You exchange names of            
 experts and then nobody gets anything until the middle of trial.              
 That, the department felt was inappropriate so they tried to do the           
 next best thing which was to adopt a rule that comported with the             
 Alaska Supreme Court's constitutional decision in this area, and              
 which tried to legally circumvent that decision by having the                 
 defendant waive his right to self-incrimination.  In other words,             
 agree to opt into this discovery process and the prosecution and              
 defense both turned over information.                                         
                                                                               
 MR. GUANELI said that turned out to be a cumbersome process.  After           
 thinking about this, it was decided perhaps the best way to address           
 this issue was to focus on the Supreme Court's opinion that had               
 caused all the problems - the Scott decision which is over 20 years         
 old - and take it on directly.  In other words, to propose a                  
 statute that would say the prosecution gives over information, the            
 defense gives over information.  He said that flies directly in the           
 face of the Supreme Court Scott decision.  Mr. Guaneli said this            
 bill, on its face, if that decision is still good law, is                     
 unconstitutional, but it is hoped the Supreme Court will change its           
 mind.  When there is a case brought up to it, it will reverse the             
 Scott decision and it will uphold this bill.  The department thinks         
 that will be the case because Alaska has the most liberal discovery           
 rules in the country.  The Scott decision is the only Supreme Court           
 decision out there that rules in that way, by saying there are                
 Fifth Amendment rights to witness lists.                                      
                                                                               
 MR. GUANELI said given that that's the case, and given that the               
 American Bar Association (ABA) has come out with a new edition of             
 its discovery rule, which is largely adopted in this bill, he                 
 thinks the Supreme Court is going to go in that direction.  Mr.               
 Guaneli said this discovery rule was based on the 1970 ABA                    
 standards and the department thinks there is a good reason to                 
 believe the court will go along with the 1994 ABA standards.                  
                                                                               
 MR. GUANELI then referred to the last three sections, which are               
 proposed in the amendment.  He stated that in the process of coming           
 up with the new version of the bill, the sponsor's office and his             
 office both worked closely with the Public Defender Agency.  They             
 had a number of comments about the first draft.  He said their                
 concerns have been met on all but one minor point, and in doing so            
 there were some compromises.  In other words, the department                  
 expanded what they have to give the defense.  He said they are                
 giving them a little more or a little earlier discovery of certain            
 matters not requiring that they request it, but just automatically            
 turning them over which are things that they don't have to                    
 currently do.                                                                 
                                                                               
 MR. GUANELI referred to Section 2 and said it provides that the               
 bill is not severable.  In other words, if the court is going to              
 strike down part of it such as the defense obligation to turn over,           
 there is no reason to that they should be stuck with some                     
 additional obligations, so they go back to the current rule.  The             
 bill requires a non-severability clause because of an Alaska                  
 statute that says, "If the legislation is silent, it means it is              
 severable."  In other words, if one part is stricken down the other           
 part stays.                                                                   
                                                                               
 MR. GUANELI referred to Section 3, which says this applies to                 
 essentially all criminal cases that are going on right now.  If it            
 didn't fade out, there would be at least an ambiguity about whether           
 the rule applied to criminal cases that are going on in the system            
 at the time the bill took effect.  Mr. Guaneli said they want the             
 rule to apply to all criminal cases that are going on in the                  
 system.  He stated there is no reason to have two separate                    
 discovery rules applying to pre-July 15 cases and after July 15               
 cases.  If you don't specifically say it, there is a presumption              
 that a bill is not retroactive.                                               
                                                                               
 MR. GUANELI referred to Section 4, which says the Act takes effect            
 July 15, 1995.  That coincides with the effective date of the                 
 changes the Supreme Court made in their rule last month.  This says           
 that it specifically supersedes those changes, so at the time the             
 Supreme Court's rule changes would have taken effect, this new rule           
 would take effect, so you don't have three versions of the rule               
 going on, you've got just one.                                                
                                                                               
 REPRESENTATIVE TOOHEY asked if this would incur a whole bunch of              
 court cases that are going to turn supplemental.                              
                                                                               
 MR. GUANELI answered the department doesn't anticipate that any               
 kind of supplemental would be required.  They would anticipate that           
 litigation is going to be required to get the Supreme Court to                
 overrule the Scott decision.  Mr. Guaneli said the Criminal Rules           
 Committee that looks at these rules, and that had made the                    
 recommendations for the rules adopted last month by the Supreme               
 Court, many of the people on that committee are of the opinion that           
 the Supreme Court cannot change its rule in a way that is contrary            
 to one of its existing case law decisions.  It has to have a case             
 in front of it where there are arguments on both sides, pro and               
 con, in order for the court to do that.                                       
                                                                               
 CHAIRMAN PORTER asked if there were more questions about amendment            
 number one.                                                                   
                                                                               
 REPRESENTATIVE BUNDE moved amendment one.                                     
                                                                               
 CHAIRMAN PORTER indicated amendment one addresses Sections 2, 3 and           
 4.  He asked if there was discussion or objections.  Hearing none,            
 Amendment number one is adopted.  Chairman Porter said the                    
 committee needs to adopt the CS.                                              
                                                                               
 REPRESENTATIVE TOOHEY moved to adopt the CS for House Bill 25, work           
 draft H, dated 3/23/95.                                                       
                                                                               
 CHAIRMAN PORTER stated there was a motion to adopt the CS as                  
 described.  He asked if there was an objection.  Hearing none, the            
 CS for HB 25 was adopted.  Chairman Porter said he would entertain            
 another motion to adopt amendment number one.                                 
                                                                               
 REPRESENTATIVE BUNDE moved to adopt the amendment to the CS.                  
                                                                               
 CHAIRMAN PORTER asked if there was an objection.  Hearing none,               
 amendment number one was adopted.                                             
                                                                               
 REPRESENTATIVE BUNDE moved that committee substitute for House Bill           
 25, as amended, pass from the House Judiciary Committee with                  
 individual recommendations and attached fiscal notes.                         
                                                                               
 Number 800                                                                    
                                                                               
 CHAIRMAN PORTER asked if there was an objection.  Hearing none,               
 CSHB 25(JUD) was passed out of the House Judiciary Committee.