Legislature(1995 - 1996)
01/22/1996 01:05 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 314 - VIOLATING DOMESTIC VIOLENCE ORDERS HB 326 - REQUIRE CONSENT TO RECORD WITNESS/VICTIM CHAIRMAN PORTER informed the committee that they are scheduled to hear HB 314, "An Act relating to the crime of violating a domestic violence restraining order," and HB 326 "An Act relating to disclosures in contacts between crime victims and witnesses and the defense; relating to recordings of statements of crime victims and witnesses by the defense; and amending Alaska Rule of Evidence 613." He explained both of the bills remain intact, but have been merged into one committee substitute (CS). There are a couple of minor adjustments to CSHB 314 that will be explained. Chairman Porter asked Representative Parnell to explain the bill REPRESENTATIVE SEAN PARNELL, sponsor of HB 314 and HB 326, asked if the committee has adopted the CS as the working document. Number 161 REPRESENTATIVE CON BUNDE moved that the committee adopt CSHB 314 as the committee's working document. CHAIRMAN PORTER said there has been a motion to adopt CSHB 314(JUD), Version F, dated January 22, 1996. He asked if there was an objection. Hearing none, CSHB 314(JUD) was before the committee. Number 197 REPRESENTATIVE PARNELL explained CSHB 314 now contains two bills. The first portion has to do with domestic violence restraining orders and the second portion has to do with surreptitious taping. With respect to domestic restraining orders under Title 25, a person, upon a showing that they've been subjected to domestic violence, can go into court and get a domestic violence restraining order. He explained that by statute, the restraining orders can include several provisions. It can restrain a person from being within a certain distance from somebody. It can include making somebody vacate a household. It can include keeping them out of a person's vehicle. Basically, it keeps an individual away. REPRESENTATIVE PARNELL said currently, if you violate a domestic violence restraining order, a violation is defined in statute as merely communicating directly or indirectly with the other party. A violation does not include getting into a car with somebody. CSHB 314 attempts to mirror those elements that are generally included in a domestic violence restraining order. Representative Parnell informed the committee members it is more of a technical change, but it is an important one. REPRESENTATIVE PARNELL said the second half of the bill relates to surreptitious taping. This portion of the bill has three sections. In general, the principle is that, if you are a criminal defendant or are working for a defense attorney, you cannot go tape record the statement of a crime victim or a witness without their consent. In short, CSHB 314 says if you're a member of the defense team and you're going to go tape a crime victim or a witness of a crime, you'd have to give them notice that you're taping and get their consent on the tape. Representative Parnell said that covers the first two sections. Number 380 REPRESENTATIVE BUNDE referred to the section about surreptitious taping and said it is his understanding that the prosecution is not allowed to tape. He asked Representative Parnell if he is asking that it be even handed so that the defense not be allow to tape without prior notification. REPRESENTATIVE PARNELL explained the prosecution can tape under certain circumstances. For instance, prosecution can tape if a uniformed officer is present or if there is a court order. There are some specific activities that can be taped by the prosecution. He said testimony by the Department of Law (DOL) would cover those issues. REPRESENTATIVE BUNDE added that taping by the prosecution is only done with the permission of the courts. REPRESENTATIVE PARNELL said it can be done outside the permission of the courts. He said he believed Dean Guaneli could answer that question better. Representative Parnell explained the final section of CSHB 314 deals with victims and witnesses of sexual offenses. Basically it states that if you are a victim or a witness of a sexual offense and you have provided in writing that you do not want to be contacted, the defense cannot contact you directly. There are several ways you can get around that. One way is that the victim's statement to the police is available through discovery. The victim's (indisc.) to the victim from the Grand Jury proceedings are also available. There is a provision in the criminal rules where if you show good cause, you can take the deposition of a victim regardless of what kind of an offense has occurred. There are other avenues of information available to the defense. Number 539 REPRESENTATIVE JOE GREEN said in essence, CSHB 314 codifies that which is already used in law. CSHB 314 doesn't establish anything that isn't presently done, it just brings it into the statute. REPRESENTATIVE PARNELL said he doesn't think that is wholly accurate. For instance, with the domestic violence restraining order, there are some judges that will apply the statute very literally which means that if there is no communication, technically he is not in violation of a statute. Representative Parnell said what he is trying to do is to get an even application of the violation of the domestic violence restraining order. In terms of codifying what is currently the case, it is his understanding that a representative from the Public Defender's office can go interview somebody could say, "I'm from the PD's office and I'd like to ask you a couple of questions." That person can then surreptitiously record a conversation. He said he doesn't think that a crime victim or a witness has any lesser expectation of privacy than any other person. They should be given notice of the taping then give consent before they are taped. Number 645 DEAN GUANELI, Chief Assistant Attorney General, Criminal Division, Department of Law, referred to the surreptitious taping aspect of the CS and said up until recently it was considered by the Alaska Bar Association to be unethical conduct for an attorney to secretly tape record somebody else's conversation. That ethics opinion was consistent with other ethics opinions from around the country and existed for a number of years. The Board of Governors of the Alaska Bar Association was persuaded, however, that they ought to amend that long standing practice. At least with respect to criminal defense lawyers, their agents and investigators, it would no longer be unethical for them to secretly record somebody's conversation as long as they disclosed who they were. The process leading to that decision was, in the view of many, flawed. In fact the Ethics Committee, which is a committee of the Alaska Bar Association, unanimously opposed that decision by the Board of Governors. Nonetheless, the Board of Governor's did that and it resulted in the legislation. MR. GUANELI said the proposed CSHB 314 says, "O.K., if the attorneys don't think it's unethical and if they're gonna anyway, at least there are going to be some standards." You are going to notify the person, who is contacted, with whom you are affiliated and their consent is going to be recorded on the tape. If they ask for a copy of the tape, you will give them a copy. CSHB 314 sets some standards. Mr. Guaneli said he would address the question of whether prosecutors can do that. During the discussions in the Alaska Bar Association, many times it was stated that prosecutors can secretly tape record. He said, "We can't." The police can do surreptitious taping in a number of circumstances. He listed them as follows, first, pursuant to a warrant by a court when there is probable cause to believe that a crime has been committed. Mr. Guaneli pointed out when someone says they wear a wire, you don't just wire someone up and send them out. You've got to get a court order to enable that to be done. MR. GUANELI explained the second circumstance surreptitious taping can occur is when you're dealing with someone in uniform. There are a lot of police offices who, for their own safety, when they pull someone over and give a traffic ticket, use a recorder to tape everything that transpires. So when someone starts acting outrageously and an arrest is made, the police officer is protected by the recording and prevents misunderstandings. Police officers don't need a court order at that time because they're in uniform. Mr. Guaneli said the other exception when surreptitious taping can be done is when you're calling the police station. Most people recognized that when they call into a police station and there is a beep on the line, their calls are being recorded. A court order is not needed for that. Mr. Guaneli said defendants who are at the police station and are being questioned, in many circumstances having their conversations with the police recorded. In fact, the Alaska Appellate Courts have required that the police make recordings of their conversations with defendants so that there is no misunderstanding about what was said. There is no misunderstanding about the fact that they were read their rights and they voluntarily gave up their right to remain silent. MR. GUANELI said the police can make recordings with or without a court order under limited circumstances. Prosecutors cannot. According to the Alaska Bar Association, it is not unethical conduct for defense attorneys to do it and the CSHB 314 sets some standards for doing that. Number 954 MR. GUANELI suggested some proposed changes that will make CSHB 314 better. The first changes the definition of witness. CSHB 314 defines a witness in terms of any person who it is believed might have knowledge of the criminal case. Mr. Guaneli said the specific language is on line 6. A witness is someone who is contacted because they may have knowledge of the case, not because the person believes they may have knowledge. This eliminates the excuse used for not gaining consent for taping, such as the investigator didn't know the person had knowledge so they weren't considered a witness. In other words, the subjective intent of the person making the recording or taking the statement shouldn't be relevant. It is just whether or not that person is a witness in the common parlance. He said he believes his proposal clarifies the issue. MR. GUANELI said the second amendment, on page 3, right after line 30, defines what a statement means in this section. CSHB 314 does a couple things. One, it says that with respect to any victim or witness of any crime, you've got to notify them if they're being tape recorded. The tape has to actually disclose the notification. Then with respect to victims and witnesses of sexual offenses, if you want to contact them and take their statement, you have to get written permission and record their consent on tape. This double requirement may not be appropriate. If you're getting it on the tape and the victim discloses it on the tape, that ought to be enough. Mr. Guaneli said by defining "statement" to mean written or oral statements, but not including a properly recorded statement, you'd take care of that double requirement. Number 1118 CHAIRMAN PORTER asked if subsection "(f)" should be included. MR. GUANELI responded, "Or it could be just another -- in this section -- where it says `(e)' in this section `sexual offense means' and `statement means.'" He noted he has a definition for statement. You would define the word "statement." Mr. Guaneli said he would propose that "statement" means a written or oral statement. Number 1228 MR. GUANELI referred to his third amendment and said he thinks it is the most important. This amendment is to specifically states what the consequences are for violating these provisions. On page 3, lines 20 to 23, there is a provision that says that surreptitious taping is inadmissible unless the court finds the statement will constitute manifest injustice. He said he thinks that in order to give the court some standards for making that determination, some additional provisions are necessary and added that if the statement is reliable, the evidence can't be obtained from any other source and by not admitting the fact finding process will be undermined. That gives the court some guidelines in making this determination. He said we don't want the court to go overboard in either direction to rule all of the statements inadmissible because that is unfair to defendants if it is something very important and exculpatory. On the other hand, we don't want it to be loose so that all surreptitious taping would be admitted because eliminating the deterrent value. He explained he has a proposed amendment which incorporates those additional requirements. REPRESENTATIVE GREEN asked if this would replace lines 20 to 23. MR. GUANELI said that is correct. He said the language currently in lines 20 to 23 is only applicable in Section 125 and there is no reason why it shouldn't also apply to the secret tape recording provision as well. In other words, if we are to have some (indisc.) value in this, we really need to apply it to both circumstances. He suggested that a similar provision should also apply to the secret tape recording. Number 1280 REPRESENTATIVE GREEN asked if the sponsor is in agreement with the amendments. MR. GUANELI said because of the time frames involved, the sponsor saw the amendments shortly before the meeting began. BARBARA BRINK, Deputy Public Defender, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage. She informed the committee she has been an attorney and an investigator for the Public Defender for 13.5 years. Ms. Brink said she would give the committee the benefit of her experience both as a lawyer and as an investigator to convince the committee members why they should not pass CSHB 314. There are both legal and policy reasons CSHB 314 isn't a good idea. MS. BRINK said a defense investigator is the functional equivalent of a police officer or a state trooper. These are the people who (indisc.) by the lawyers to gather facts and to interview witnesses to try to dig deeper into a case to determine what really went on. It is unfair and in violation of equal protection to give the police tools to use to investigate a case and yet deny those to the defendant who is being accused of a crime. The police and law enforcement can tape and video tape surreptitiously. They do not have to announce it or get permission. Ms. Brink said the reason they can do that is because there is no expectation of privacy when you're talking to an identifiable police officer. Similarly, there should be no expectation of privacy when you're talking to a defense investigator. She said her defense investigator is required by law to tell the witness that he is the defense investigator, he works for the defendant, the witness has an absolute right not to speak to them, and also has the right to have the district attorney present with them. Therefore, CSHB 314 does nothing to protect the privacy of that witness if the witness is completely aware of who they are speaking to. CSHB 314 does unfairly limit the investigators tools to investigate a case. MS. BRINK pointed out that at least one state court in Louisiana has specifically housed a statute license to be unconstitutional and a violation of equal protection. Louisiana developed a statute where defense investigators were not permitted to engage in unannounced surreptitious tape recordings. This statute was found to be an arbitrary and unreasonable classification. The courts ruled that it violated both the federal constitution and state constitution. Ms. Brink said she firmly believes that if CSHB 314 is passed, it will be found to be unconstitutional. MS. BRINK said there are other states that have dealt with the question of defense investigator tape recording. At least three states have specifically upheld the defense right to do unannounced tape recording including Arizona, Kentucky and Tennessee. She said she has been unable to find any state that has introduced similar legislation that was upheld. She concluded that those are the legal reasons why CSHB 314 should not be passed. MS. BRINK stated public policy reasons why CSHB 314 should not be passed. She reiterated the things an investigator must say when talking to a witness or victim. She stated an investigator or lawyer is often able to go into more depth because of the time constrains often faced by the police. Police don't often have time for an extensive interview. Unannounced tape recording fosters openness which would not occur if layers of formality, such as reading of requirements, were implemented. People perceive that talking with you is wrong if you add those layers of formality. Allowing the defense to tape record fosters honesty and produces an accurate record. Tape recording protects investigators and defense lawyers. On a number of occasions a witness will claim that the defense investigator has made them a promise or stated something differently. These accusations can be refuted with the use of recordings. MS. BRINK said she could understand that the legislature wanted to protect victims and witnesses, but CSHB 314 does not incorporate the need for an accurate record. Unannounced recordings are not used in every situation, but in certain cases recordings are needed. These cases needing unannounced recording include undercover informants, snitches, someone who themselves could be charged, a person with a personal grudge, or someone stating information without any physical cooperation. CSHB 314 inferred that no oversight over the defense team had occurred. She added that tape recordings actually eliminates concern over possible irresponsible actions on the part of the defense team. She said the defense team wants the same privileges as the police have. MS. BRINK said that the defense team, employed by the Public Defender agency, are bond by the same ethical considerations as lawyers, which are different from the rules that govern police action. One of the rules is that a defense attorney cannot lie regarding a material fact. In other words he cannot misrepresent things to a witness. Police can tell a witness that they found fingerprints or other evidence in an effort to get someone to say something. The state will also be protected from the taking of any state (indiscernible) contacts. If a statement by a witness is intended to be used at trial we are required to turn that over to the prosecution. Most investigators are Public Defender agency investigators and are highly motivated and trained, closely monitored, educated in the rules governing ethics and fair dealing. A lawyer takes great care in insuring that rules and guidelines are used by the defense team in tape recordings. MS. BRINK said under Section 3 which requires written authorization in an effort to take statements from witnesses or victims in sexual offender cases. This authorization will prevent interviews in those cases. A written notification inhibits witnesses from talking openly. Police realize that when a suspect is read his Miranda Rights, he is less inclined to discuss things with them. The police have developed ways to curtail the reading of the Miranda Rights, such as telling a suspect that they are free to leave. She felt that the burden of written notification on the investigator is the functional equivalent of preventing the investigation in those cases. MS. BRINK said CSHB 314 was designed to increase privacy for the victim or witness with accuracy in fact finding, however she felt that because the defense team is already required to divulge who they were and who they work for and that the witness or victim doesn't have to speak to us, they are already protected. She reiterated her main points and urged the committee not to pass CSHB 314. Number 1820 REPRESENTATIVE BUNDE clarified that when defense lawyers or investigators interviewed a witness or a victim they informed them of the defense attorney's relationship to the defendant and that a district attorney can be present. He said these things inform the interviewee that this is a serious thing and questioned her belief that if you add the request for tape recording the interview would be squelched. Number 1850 MS. BRINK said yes, when people are confronted with a tape recorder they are more hesitant to speak. She said police officers can verify this point and added people will often say, I'll talk with you after you turn off the tape recorder. Number 1865 REPRESENTATIVE BUNDE disagreed, because, obviously a victim or witness is aware that this is not a casual conversation and adding a simple statement requesting recording would not change that relationship. He questioned the process which lets the investigator choose his words very carefully while hoping the victim or witness does not. Number 1920 MS. BRINK said the same thing could be said of police officers. Defense investigators choose their words and the format of their interviews carefully and both defense investigators and police should have the ability to do unannounced tape recording. Number 1947 REPRESENTATIVE BUNDE asked whether a police officer can, under normal circumstances, surreptitious tape record a witness or possible suspect. Number 1957 MS. BRINK said if it is obvious that he is a police officer, yes he can. Number 1962 REPRESENTATIVE BUNDE said he understood that this wasn't the case under the Glass Opinion. He asked that under CSHB 314, if there was anything to preclude defense investigators from getting a Glass warrant. Number 1973 MS. BRINK said she believed the Glass Warrant process only applies to law enforcement. Number 1984 LAUREE HUGONIN, Executive Director, Alaska Network on Domestic Violence and Sexual Assault (ANDVSA) was next to testify. ANDVSA is a state wide coalition of community, domestic violence, and sexual assault programs in Alaska. Services provided include shelter, advocacy, crisis intervention, information and referral services for victims seeking assistance in ending the violence perpetrated against them. ANDVSA supports CSHB 314 and Ms. Hugonin said she wanted to talk about sections of CSHB 314. MS. HUGONIN said Section 1 expands the number of violations of domestic violence injunctions for which people can be criminally sanctioned. ANDVSA feels this component reinforces the notion that violence against Alaskan women will no longer be tolerated. National studies have found that one of the most violent times for women are when they try to escape the violence. At this time, stalking behavior intensifies and battered women are killed. She referred to the Anchorage homicide that occurred last September. Domestic violence injunctions are tools which can be used to provide some protection to victims. Injunctions are designed to deny the abuser access to the victim which hopefully decreases an elevated risk of violence, allows the victim to be safe in her home, and keeps the abuser from jeopardizing her employment and personal support. Domestic violence injunctions only work when abusers see them as enforceable. When abusers see the risks to breaking them outweigh the benefits they chose to not violate the restraining order. If we do not have enforceable domestic violence injunctions, then the victim is placed in greater risk and have condoned the abusers actions. Currently, communication is the only item in a domestic violence injunction for which someone can be criminally sanctioned. Gaining access to the victim, and further domestic violence should also be criminally sanctioned. She encouraged support for increased women's safety by supporting Section 1 of CSHB 314 MS. HUGONIN said the remainder of CSHB 314 focuses on taping. She stated that victims and witnesses should not be coerced or manipulated into giving statements to the alleged perpetrator's defense counsel or anyone working on his behalf. The legislature recognized this by creating Alaska Statute 12.61.120C in 1991. This statute states that before speaking to anyone about the crime committed against them, victims have the right to know who the person is and what interest they represent. Ms. Hugonin feels that victims should be able to know whether the conversation is being recorded. If the statement by the defense attorneys are correct, that unannounced tape recording produces accuracy in statements given before and during trial, she contended that it should be done in a forthright manner. A request to record as well as a tape recorder in plain view should be part of the procedure. Just as defendants should have a right to collect evidence, witnesses should have the information they give in a safe environment. Serving justice should not mean tricking people. HB 314 only requires honesty about their intentions from a defendant and investigators and supports the integrity of the criminal justice system. Number 2150 FRED DEWEY, Defense Attorney, was next to testify. He has been a defense attorney for 13 years, prior to that he was a law clerk for a judge in Anchorage and worked for the law firm for a short while. Currently he is in private practice doing criminal work. He testified against CSHB 314. He questioned the practical aspects of how the practice of defense attorneys is being legislated and regulated. The ethics association under the Alaskan Bar Association states that defense attorneys cannot misrepresent any facts to a witness. If defense attorneys are asked any questions they are required to answer them truthfully. MR. DEWEY said Section 2, revising the statute, prevents the very thing that Mr. Guaneli spoke about. Section 2 would prevent the defense lawyer or investigator from turning on the tape recording to document the victim or witness stating that they don't want to speak and the beginning part of the interview might be lost. Specifically, CSHB 314 is meant to outlaw surreptitious taping, but what it ends up doing is to allow disputes to occur even when there is not surreptitious taping. If you are going to include the need for notification of taping, then the language must be changed so that you allow unannounced taping so that the consent or denial can be recorded. He cited examples where the defense attorney has needed this recorded proof to dispute accusations. He said without recording the sound of the defense lawyers entering the room leaves possibilities for any accusations of threats or promises to be brought forward by the victim or witness. Tape recording protects the defense lawyer or investigator against these accusations. It also protects their credibility in defending their client which would be reduced if an accusation were made. He referenced a personal example where he was able to refute the accusation by presenting the recording he made. MR. DEWEY said the Glass Opinion has to do with surreptitious taping by informants. Police officers who don't identify themselves as anything but a citizen are a target. In that situation there is a requirement for a warrant by the state. In consensual recordings done by one party giving the consent, police officers are allowed to do recording without any warrant whatsoever as long as they have identified themselves as a police officer. The ethics opinion of the Alaskan Bar Association addresses the need for the defense lawyer to identify themselves, who they represent, and their right of the witness to have someone present. The need was done so, that in a sense, a police officer was speaking with a witness or a target. The Alaskan Bar Association opinion does not really change any of that, and CSHB 314 would change it significantly. MR. DEWEY addressed the point of whether defense lawyers are limited and the state is not. He said defense lawyers are like a police officer in that they are interested in gathering facts. The difference between the two, stems from the point that a police officer is interested in gathering facts for a particular purpose. A defense lawyer cannot get a search warrant, cannot ask for a Glass Warrant, cannot surreptitiously represent himself as someone different, cannot make a deal with a willing witness who has the ability to implicate others and cannot offer rewards. TAPE 96-5, SIDE B Number 000 MR. DEWEY said these are all things available to the state. CHAIRMAN PORTER requested that Mr. Dewey summarize his testimony for the sake of time. Number 017 MR. DEWEY said that you rarely record a victim of any crime. Victims are special witnesses that are handled with kid gloves. Defense lawyers are not interested in having the jury perceive themselves as coercing a victim. Witness or victim coercion would be lessened by the proposed statute taken. Without taping, accusations of coercion could be made. Taping would provide an accurate record. Surreptitious taping would be done on the rare occasion in which a defense lawyer feels the witness or victim has lied and would be likely to tell another lie. Recordings can catch differences in the story. These recordings are given to the prosecuting attorney to prevent the perjury of testimony in court proceedings. Taping insures accuracy in our profession which is a goal and accuracy is not considered unethical. MR. DEWEY referred to the reference Mr. Guaneli made about the ethics committee. He stated that their concern, stated at the Governor's meeting and at the Alaska Bar Association, related to concern about the process. They were not making a substantive determination when they go (indiscernible-paper shuffling) on a unanimous basis. CSHB 314 fixes something that does not need to be fixed. CSHB 314 creates a lack of protection for witnesses, process and for the ability to get to the truth. Number 170 CHAIRMAN PORTER asked if Mr. Dewey was in possession of a letter dated April 20th. Number 179 MR. DEWEY said he was in possession of the ethics committee letter. Number 185 CHAIRMAN PORTER said it appeared to reflect what Mr. Guaneli said and it is signed by 19 members of the ethics committee. Number 190 MR. DEWEY said he asked the ethics committee to talk with the Board of Governors. One of the ethics committee members spoke at this meeting last week and came out for the ethics opinion. The main concern of the ethics committee, at the time they issued that letter, was that the committee was working on a draft of an opinion for a period of years and the Board of Directors changed direction pursuant to precedents from other states. This change was done without adequately consulting the ethics committee. The Board of Governors brought this issue up last week at a hearing and re-voted on the ethics opinion to allow a little more public process. Number 230 CHAIRMAN PORTER disagreed and said the letter can speak for itself regardless of a tape from the Board of Governor's meeting. Number 250 JAYNE ANDREEN, Executive Director, Council on Domestic Violence and Sexual Assault, Department of Public Safety, was next to testify. She said she is in favor of CSHB 314. Section 1 pertains to temporary restraining orders and she addressed this issue. She said that when a victim of domestic violence obtains a temporary restraining order she is often told by the police, by the court, and by the victim advocates that this is only a piece of paper. and are encouraged to protect themselves. She referred to Ms. Hugonin's testimony where temporary restraining orders are not enough. Experience has taught us that the most effective way to give temporary restraining orders some weight is to allow the justice system the opportunity to respond quickly to violations of the restraining order. MS. ANDREEN said CSHB 314 expands the number of situations where an arrest can be made for violation of the order and she feels that this is very important in order to increase the long term protection of victims in Alaska. She stated support for the second and third parts of the bill. Alaska has been clear about the need to implement laws and a constitutional amendment ensuring that the rights of victims will be protected. CSHB 314 is also necessary in order to insure that victims know what it is and that they know what is happening with their statements. She addressed the presumption that a victim is going to know that any contact she has will be a part of public record. She refuted this by saying that victims do not choose to go through the process, it is a stressful period for them. They are overwhelmed by the different people and agencies, and do not have the legal expertise that one needs in order to understand how these laws and these rights fit together. She supported Ms. Hugonin's statement that if the defense wants an open process and more active information, then be honest and open about what they are doing. Number 360 KEVIN McCOY, Federal Public Defender, Office of Federal Defenders for the District of Alaska, was next to testify. He said he has practiced law for 18 years mostly in criminal defense. He indicated that he received notice two hours ago that this meeting was occurring and had material he was willing to send if members felt it would be helpful. He said the ethics opinion regarding unannounced tape recording was requested in November 1993. An investigator from his office was falsely accused of representing himself as an agent of the FBI and harassing a witness. The investigator happened to have someone present who could deny those accusations. It was at that time that the question of unannounced tape recording came up. He said he has ethics opinions from the state of Arizona, New York, Tennessee, Kentucky, and Mississippi. These opinions authorize unannounced tape recording. The Supreme Court of Louisiana said it is a violation of equal protection to prohibit authorized law enforcement to surreptitiously record and not allow criminal investigators to do so. MR. McCOY said the Alaskan Bar Association proceeded in this matter with care. In October of 1994, the ethics committee was presented with a draft opinion which authorized surreptitious taping by both civil and criminal investigators. The ethics committee split on the draft and did not make a recommendation to the Board of Governors. In October of 1994, the Board of Governors invited both the proponents and opponents to present their cases. The proponents of the opinion contended that if the Board of Governors were unwilling to adopt a broad ethics opinion they should at least adopt one for the criminal defense bar. A tape of that meeting was made for each member of the Board of Governors. At the January 1995 meeting they considered the issue and directed the ethics committee to draft their opinion along the lines of the one they adopted. The ethics committee declined to do that and gave no explanation. During that time, an opinion was presented to the Board of Governors and in March of 1995 it was adopted. The letter referred to by Chairman Porter indicating that the ethics committee unanimously opposed it was done in order to request reconsideration. After full reconsideration, the Board of Governors decided to maintain the opinion that was adopted, but invited the ethics committee to draft an opinion along the lines the Board of Governors wanted if they wished. When this was done, a request was made to hold a public comment period on the opinion. Mr. McCoy listed various persons and organizations who were notified. The public comment period, held last week, concluded with a Board of Governor's vote. They voted 8:3 to maintain the opinion. He encouraged the committee to take careful consideration as you are balancing privacy interests versus the concern for an accurate record. Despite the public opinion that defense investigators and criminal lawyers overreach, their main objective is to protect themselves from false allegations and bring integrity to the process. Tapes will verify all aspects of the interview. MR. McCOY asked the committee to review the Quint Opinion. This opinion discusses reasonable expectations of privacy. The decision of Quint was whether you have a reasonable expectation of privacy. In Alaska, you do not have a reasonable expectation of privacy when you are dealing with a uniformed police officer and that officer is asking you about an event of public importance. When a victim or witness is told that they are being interviewed by a defense investigator in connection with a particular event, then that witness or victim no longer has a reasonable expectation of privacy under those circumstances. He concluded by urging the committee to understand that accuracy is why the use of tape recording is needed. Number 665 CHAIRMAN PORTER requested the information offered by Mr. McCoy and explained the procedure of how to send it. Number 673 ROBERT BUNDY, United States Attorney, District of Alaska was next to testify. He said he has been practicing law for 24 years with Alaska Legal Services, private practice, as the Nome District Attorney, Assistant District Attorney in Anchorage and Assistant Attorney General in Anchorage in anti-trust matters. In private practice he did litigation and some criminal defense work. He has been a United States Attorney for two years, a member of the ethics committee for a number of years, and Chairman of the Alaska Wolves Professional Conduct Committee of the Alaska Bar Association. He stated his experience with interviewing hundreds of witnesses in preparing his defense for clients. MR. BUNDY said witnesses and victims are traumatized or upset and do not realize who the players are and therefore need additional standards for protecting their privacy. He referred to Mr. McCoy's testimony and the original case which centered on the ethics of surreptitious taping. He said in that case, it quite possible that the investigator referred to himself as from the FPD (Federal Public Defender) office. He added that the witness had probably never heard of the FPD, because that witness had never been involved in the criminal justice system. He said his point was that people can be told who the person questioning them is and where they are from, but people who are unsophisticated in the criminal justice process are not going to understand what that entails. MR. BUNDY said people feel their personal privacy is violated when they are tape recorded without their knowledge. CSHB 314 balances the privacy interests with accuracy. He stated that prosecuting attorneys are prosecuting those suspects who they feel are guilty. Whereas defense lawyers, if they are doing their job ethically and properly, are doing everything within the law to obtain the best results for their client that they can. Even if the defense lawyer knows that his client is guilty through a suppressed confession, that defense lawyer is committed in court to cast doubt on his guilt by cross examination. If obtaining this doubt can be gained through tape recording, then it is done. Tape recording of a witness does not have to be revealed and announced until that witness testifies. MR. BUNDY said the Board of Governors and the Alaska Bar Association took it upon themselves to make a policy decision that witnesses and victims in criminal cases have a lesser expectation of privacy. He stated that most of these lawyers have little experience as prosecuting attorneys and if they work on criminal cases, it is usually on the side of the defense. MR. BUNDY said it is his experience that if you explain who you are and why you want to make a tape recording, there is very little opposition to it. The requirement in CSHB 314, that the witness should have the availability of a written transcript of the recording is exactly the kind of respect a witness or a victim ought to get in our system. MR. BUNDY addressed the testimony opposed to CSHB 314 and their desire to have the same tools that police officers have. He said the state of Alaska, more so than any other state he knows of, favors the defense more than the prosecution. The prosecution (indiscernible) to the defense and the Alaska Supreme Court has not placed any of that same requirement on the defense. Today's testimony requesting the same tools of police officers is inaccurate, because the defense gets more. All of that information gathered by the police is passed on to the defense as well as information gathered by the prosecution. CSHB 314 levels the playing field, making the system have more integrity and accuracy. Number 1074 REPRESENTATIVE FINKELSTEIN asked if a witness or victim would also feel their privacy was violated by a police investigator as well. Number 1091 MR. BUNDY agreed, but added that most people in this country understand the role of the police. However, witnesses do not often understand how the criminal justice system works and the role of the defense investigator. Number 1115 REPRESENTATIVE FINKELSTEIN said he felt it was based more on how they were dressed. Number 1121 MR. BUNDY reiterated that police are required to turn the information and evidence that they collect over to the defense. He suggested a reciprocal sharing of information between the prosecution and the defense in order to equal things out. Number 1135 REPRESENTATIVE FINKELSTEIN asked if the CSHB 314 provision providing a transcript were enacted, what would be the disadvantage to tape recording rather than simply recounting the conversation. Number 1161 MR. BUNDY said he felt the provision would go a long way assuming that the Alaska court system allows it. He said that victims and witnesses should be informed that what they say is going to be taken verbatim because they usually do not understand the process These are the reasons why unannounced tape recordings should not be allowed. Number 1231 CHAIRMAN PORTER closed the public hearing and requested that Mr. Guaneli come forward to answer questions from the committee. Number 1268 REPRESENTATIVE FINKELSTEIN requested clarity on whether uniformed police officers surreptitiously tape. Number 1284 MR. GUANELI believed that a police officer can surreptitiously tape if the person is questioned directly. Number 1320 REPRESENTATIVE FINKELSTEIN asked if the Don Smith case related to that, but Mr. Guaneli could not recount that case. Number 1333 CHAIRMAN PORTER asked if the same allowance was given for a non- uniformed police officer. Number 1335 MR. GUANELI said it is a gray area because people can become confused easily, whether by intentional or inadvertent methods. He then addressed the confusion over what the Alaskan Bar Association did or did not do. He said there is a split in the bar. The civil defense lawyers do not like the ruling because the feel if criminal defense attorneys can surreptitiously tape, they should be able to do so as well. He mentioned that Eric Sanders, from the Alaska Trial Lawyers Association, objects to the Alaska Bar Association rule and supports CSHB 314. He said the focus should not be on what the Alaska Bar Association has done, but should be on policy considerations in the state of Alaska. MR. GUANELI said he agreed with Mr. Bundy's testimony and shared the same experience that if people are approached and the process is explained, they do not mind being taped. He said CSHB 314 might cut down on some of the aggressive tactics used. He reiterated the constitutional amendment passed in the last general election giving victims the right to dignity and respect in criminal proceedings. At the very minimum this means victims should be allowed to decide whether they are going to be tape recorded. Number 1535 CHAIRMAN PORTER asked for clarification on the section dealing with the offenders vacating the premises. He asked if this just meant removing themselves or if it also included removing their possessions. Number 1555 MR. GUANELI said current law allows a condition like that to be imposed on someone. CSHB 314 says that if the person violates that condition imposed by the court, a penalty can be accrued. Whether this means themselves and their possessions will depend on the ruling of the court. The court will inflict conditions or exceptions and under CSHB 314 this will need to be looked at to see whether a violation has occurred. Number 1609 REPRESENTATIVE B. DAVIS asked about the possible violation of equal protection and that this same sort of law might have been overturned in other states. Number 1625 MR. GUANELI said he is unprepared to comment on rulings in other states at this time. He said if the wording was such that it restricted any recording, then he could see that it would hamper the defense which could be ruled unconstitutional. He added that the constitutional amendment, giving rights to victims, makes the law in the state of Alaska a little different from the law in other states. Number 1670 CHAIRMAN PORTER agreed with Mr. Guaneli's assessment. Number 1704 REPRESENTATIVE FINKELSTEIN questioned the testimony, stating the need to record the explanation of what they were going to and the consent to tape record. Number 1738 MR. GUANELI said that in CSHB 314 it states that when approval is granted, you record that the person has been informed and the victim shall state on the recording that they give their consent. He said he perceived that the process involved engaging in some discussion before the recording begins and then documenting the facts into the taping. He said that if a person says no, there would not be the need to have a tape recording. Number 1811 REPRESENTATIVE FINKELSTEIN clarified that you would be going through that procedure twice. Number 1832 MR. GUANELI said that was correct. This is the procedure done by state troopers and reporters to find out if the person has any objection. Representative Al Vezey joins the committee at 2:25 p.m. Number 1885 REPRESENTATIVE PARNELL, when asked by Chairman Porter, said he had no objections to the proposed amendments. He requested that on the third amendment, Mr. Guaneli should specifically state his lines mentioned in the testimony. Number 1910 REPRESENTATIVE BUNDE made a motion to accept Amendment 1 located on page four, line six which deletes, "making the contact believes the person being contacted". Hearing no objections, Amendment 1 was adopted by the House Judiciary Standing Committee. Number 1937 REPRESENTATIVE BUNDE made a motion to accept Amendment 2 located on page three, line 30 adding another definition so that it reads, "`statement' means a written statement or an oral statement, but does not include a statement recorded in compliance with AS 12.61.120(d) and (e)". He added that the drafter of CSHB 314 can reformat as appropriate. Number 1960 REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli to tell the committee the significance of Amendment 2. Number 1968 MR. GUANELI said that the current drafting of CSHB 314, requests both verbal consent recorded on the tape, but that you also get written consent if it is the victim or a witness of sexual offense. Amendment 2 seeks to avoid that double requirement. Number 2034 CHAIRMAN PORTER said hearing no objection Amendment 2 was adopted by the House Judiciary Standing Committee. Number 2048 REPRESENTATIVE BUNDE requested clarification on Amendment 3. Number 2068 MR. GUANELI said the admissibility criteria should be added to both sections either by deleting it from one section or adding it to both. REPRESENTATIVE BUNDE made a motion to adopt Amendment 3 which deletes lines 20 to 23 on page three and add where appropriate the statement that is included. Hearing no objection Amendment 3 was adopted by the House Judiciary Standing Committee. Number 2110 CHAIRMAN PORTER supported CSHB 314 and mentioned that this is the first application of the constitutional amendment. REPRESENTATIVE BUNDE agreed with Chairman Porter. He discussed horror stories derived from surreptitious taping and supported CSHB 314. Number 2300 REPRESENTATIVE B. DAVIS stated concern, that because of the combining of HB 314 and HB 326 into CSHB 314, HB 314 would be lost because the combined bill might be overturned due to constitutional issues. Number 2350 CHAIRMAN PORTER said he thought it was unlikely, but if a portion of the bill was declared unconstitutional, that part would be dropped and the remaining portion would be left intact. REPRESENTATIVE B. DAVIS withdrew her concern and did not have any objection to CSHB 314. Number 2374 REPRESENTATIVE FINKELSTEIN said he believed the process required a two-thirds vote, a bill would still move forward with a majority vote, but without changes in the court rules. CHAIRMAN PORTER said it moves forward and does go into law, as it only expresses the legislature's intent and desire as opposed to two-thirds to change a court vote. Number 2411 REPRESENTATIVE FINKELSTEIN said he does feel that the legislature needs to address actions by the Board of Governors, especially when there are split feelings on it and there is a constitutional amendment on it. TAPE 96-6, SIDE A Number 000 REPRESENTATIVE FINKELSTEIN questioned whether there was any harm in having an accurate record occur. He mentioned his experience with reporters who have told him that it is very difficult to get people to speak the same way if they are being tape recorded. Number 104 CHAIRMAN PORTER said that the ability for the witness or the victim to say no is an accurate record. He said surreptitious taping is a violation to the dignity and fairness to the victim or witness. Number 150 REPRESENTATIVE FINKELSTEIN mentioned that the need for taping when the victim or witness is not telling the truth. Number 159 REPRESENTATIVE TOOHEY said she would prefer the use of a tape recorder by reporters. She said she supported CSHB 314 and any bills supporting victims. She made a motion to move CSHB 314 out of the House Judiciary Standing Committee with a zero fiscal note and individual recommendations. Hearing no objections CSHB 314 was moved out of committee.
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