Legislature(2003 - 2004)
01/26/2004 02:05 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 349 - ILLEGALLY OBTAINED EVIDENCE Number 0511 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 349, "An Act amending Rule 412, Alaska Rules of Evidence." House Bill 349 has four prime sponsors: Representatives Stoltze, Dahlstrom, Samuels, and McGuire. The committee took an at-ease from 3:33 p.m. to 3:44 p.m. REPRESENTATIVE SAMUELS, one of the prime sponsors of HB 349, specified that HB 349 will amend a court rule. He explained that presently, when there is a violation of Miranda, a statement or evidence can be excluded from court and can only come to light in a subsequent perjury trial. In Anchorage there was a case in which a man provide statements detailing how he murdered his wife. However, on the witness stand the man told a completely different story. This man was subsequently given a sentence of up to 99 years. Had the state not been able to convict him the way it did, and had it instead had to go after him for perjury, the man would've faced a sentence of six years. Representative Samuels explained that HB 349 attempts to change the rule such that if a defendant chooses to [confess] during the investigative process and then later gives a completely different story while on the stand, the original statement can be brought forth so that the jury can decide which of the defendant's statements was the truth. The bill contains a caveat on page 2, lines 1-2, which specifies, "shows that the statement was otherwise voluntary and not coerced". The aforementioned language would retain the judge's ability to preclude a coerced statement under any circumstances, but will allow statements to be used if there was a "technical violation" of Miranda. CHAIR McGUIRE, one of the prime sponsors of HB 349, informed the committee that what [HB 349 proposes] is already the law under the federal rules of evidence. She noted that many other states have this law as well, highlighted that under such rules, the jury decides which statement has more credibility. Number 0118 STEPHEN BRANCHFLOWER, Director, Office of Victims' Rights (OVR), Alaska State Legislature, turned to the notion of suppression, which stems from the concept of the exclusionary rule. The exclusionary rule is based on the premise that police shouldn't be rewarded for enforcing the law incorrectly. Therefore, if the police break the law, the jury doesn't get to hear the evidence. He emphasized that the rule change embodied in HB 349 doesn't change the exclusionary rule or the doctrine of suppression. However, the legislation does hold defendants who use Miranda and other rights as a sword [rather than a shield]. TAPE 04-4, SIDE A Number 0001 MR. BRANCHFLOWER stated that what is being proposed via HB 349 has been the law in federal courts since 1971 as a result of a U.S. Supreme Court decision in Harris v. New York, 401 U.S. 222 (1971). The following are statements Mr. Branchflower attributed to Chief Justice Burger regarding that decision: Every criminal defendant is privileged to testify in his own defense, or to refuse to do so, but that privilege cannot be construed to include the right to commit perjury. ... The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. ... MR. BRANCHFLOWER indicated that HB 349's rule change would prevent just such [perversions] from occurring. REPRESENTATIVE GARA asked if there were constitutional rules which require, under any circumstances, that a statement be taped and kept. MR. BRANCHFLOWER replied that under Alaska law, there are a couple of cases - one of them being the Alaska Supreme Court case, Stephan v. State of Alaska, 711 P.2d 1156 (Alaska 1985) - which say that during a custodial interrogation which occurs at a place of detention, the police are required to tape record the entire statement including the reading of the rights. If that is not done, he explained, unless the police can demonstrate one of the exceptions - for example, the malfunction of the tape recorder, or if the defendant wished to talk but declined to do so on tape - there is what is called a per se rule of exclusion. REPRESENTATIVE GARA gave a hypothetical example of a taped custodial interrogation of a sixteen-year-old defendant and a badly motivated law enforcement officer who "has it out for" the defendant. What happens if the officer "accidentally" loses the tape, shows up at trial, and says the defendant admitted the crime, he asked. He questioned whether or not HB 349 allows the officer to get away with saying the tape was lost. Number 0330 MR. BRANCHFLOWER answered that it does not. He said that the state would have to sustain a burden of proof in a pretrial hearing and show that there was good faith on the part of the officer losing the tape. Assuming that the state would prevail, the defendant would always still have the ability to argue a bias on the part of the police officer, he said. What this amendment seeks to address is the situation where the defendant would make some claim that was inconsistent with that earlier statement. Referring to the aforementioned hypothetical case, he said such cases usually get screened out or are resolved with a plea or reduction. House Bill 349 is designed to address egregious situations in which what happened on the tape is clear, he added. REPRESENTATIVE GARA asked for clarification about evidence not being excluded any more. MR. BRANCHFLOWER replied that there is a requirement under paragraph (1)(B) that statements be voluntary and not coerced, so there is still an element that the state has to address. REPRESENTATIVE GARA argued that [in his hypothetical case], HB 349 says that the officer who loses the tape in bad faith can come in and testify that the sixteen-year-old defendant said he did it. MR. BRANCHFLOWER replied that that would be the case only if, first, the judge rules in the state's favor in a pretrial issue regarding the requirement to tape record, and second, only if the defendant takes the stand and lies. The bill doesn't allow the state to do anything different than what it is permitted to do now in terms of its case in chief; excluded statements are still excluded and suppressed statements are still suppressed, he said. The only change comes about when the defendant takes the stand and lies, he added. CHAIR McGUIRE said she thought Mr. Branchflower's explanation was very clear. She stated that the bill really applies to those cases where defendants are going to take the stand and use this law, in effect, as a sword, in order to be able to say whatever they want because the fact that they have made prior inconsistent statements will not be introduced or become part of the record for the jury to consider. Number 0615 REPRESENTATIVE GARA said that he understood that the bill only applies once the defendant wants to testify. He again questioned the allowance of illegally obtained evidence. MR. BRANCHFLOWER reiterated that the court would first have to rule on the admissibility of the earlier statements when the tape is missing. If the officer lies during rebuttal, it would become a question of credibility. Without any tape, the state would have a tough burden to sustain, he said, adding, again, that these kinds of cases would be infrequent. REPRESENTATIVE GARA agreed that this type of case would be rare, but added: Those are the kinds of things that Congress thought wouldn't occur under the [Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001] too and they all voted for it ...; it's these occurrences that rarely ever happen that the constitution is there ... to prevent from ever happening. MR. BRANCHFLOWER said he agreed, but noted that situations like the aforementioned Anchorage example happen more often when defendants learn from their lawyers that their confessions are nonexistent and so they then testify when they ought not to. CHAIR McGUIRE stated, "You still have to prove that the statement was voluntary and uncoerced," and emphasized the importance of this point. REPRESENTATIVE GARA agreed. He asked whether HB 349 is altering a court ruling or the [Alaska State] Constitution. MR. BRANCHFLOWER answered that Rule 412 of the Alaska Rules of Evidence was promulgated and amended by the Alaska Supreme Court through its constitutionally granted authority. Rule 412 is derived from what used to be called [Criminal] Rule 26(g) of the Alaska Rules of Criminal Procedures, he said, and explained that it was amended in 1979 by adding the exception for perjury so that it would be possible for a person who commits perjury to be prosecuted in a separate prosecution. That was the Wortham v. State case. He said HB 349 is not changing the constitution, but is in line with what is constitutionally permitted. If the rule was changed by the Supreme Court in 1979 to permit for collateral prosecution for perjury, he said, then he doesn't see a problem with now changing the rule by a two-thirds vote. REPRESENTATIVE GARA asked whether case law has said that Rule 412 is required by the Alaska State Constitution. Number 1090 MR. BRANCHFLOWER indicated that there was not, adding that the clearest indication is the Wortham case, which said that it doesn't offend the Alaska State Constitution to use illegally seized evidence, though such use is limited to a collateral prosecution for perjury. In response to a question he cited Wortham v. State, 641 P2d 223 (Alaska App. 1982). CHAIR McGUIRE indicated that members would be provided a copy of that case. REPRESENTATIVE GARA asked for clarification of the rule before Wortham. He surmised that illegally obtained evidence couldn't be used in a subsequent prosecution, but then Wortham made the exception for perjury. He asked if HB 349 creates a much broader exception. MR. BRANCHFLOWER replied that it is broader in the sense that the jury in the principle case will know that the defendant is lying, as opposed to having a collateral prosecution. He noted that if a person was on trial for first degree murder it is a small hindrance to risk a prosecution for a class C felony or a class B felony. REPRESENTATIVE OGG said that in some areas, the Alaska State Constitution is broader than the U.S. Constitution in its protection of citizens' rights. He asked how other states' constitutions compare to the Alaska State Constitution with regard to the issues the bill addresses. MR. BRANCHFLOWER replied that he did not know. REPRESENTATIVE OGG said that he would like to get information on that point. REPRESENTATIVE SAMUELS agreed to investigate that point. CHAIR McGUIRE referred to a handout in members' packets detailing the commentary regarding Rule 412, and noted that it makes reference to Wortham and whether or not Rule 412 is constitutionally based. According to that commentary, there is precedent for changing court rules at the supreme court level, she said, adding that she does not believe such requires a constitutional change. She acknowledged that it might be interesting to see what other states have done with regard to this issue. Number 1290 REPRESENTATIVE OGG asked why the language, "if it is relevant to the guilt or innocence" was left out of [paragraph] (1)(B), remarking that perhaps such language ought to be inserted after "statement" in order to narrow the use of the proposed exception. MR. BRANCHFLOWER said that guilt or innocence is the focus of any trial, adding that ultimately, it is the judge's responsibility to admit reliable evidence that goes to determine guilt or innocence. REPRESENTATIVE OGG stated his concern that the current language is quite broad. MR. BRANCHFLOWER, remarking that he did not know why the aforementioned language was not included in paragraph (1)(B), said that it should be added for clarity. REPRESENTATIVE OGG recommended that there be a committee substitute that included that language. CHAIR McGUIRE agreed. Number 1498 LINDA WILSON, Deputy Director, Public Defender Agency (PDA), Department of Administration (DOA), said that there is a need to look at the purpose of Rule 412 and what it addresses, and to remember the reason why this exclusionary rule came about. In the past, law enforcement has broken the law to obtain evidence: cheated, lied, or done something illegal. Such evidence has been ruled as ineligible by the state, she added. She said that the example given by Representative Gara was a good example of a "swearing match" where the defendant, the sixteen-year-old kid, would lose to the law enforcement officer. She said the current rule will keep law enforcement in check and encourage them to behave legally. MS. WILSON said that the second part of the bill is extremely problematic. It talks about using evidence illegally obtained to impeach a witness, and this could be any witness. A witness could be called by the state, set up as a "straw man" and then the state could say, "This is an adverse witness, a hostile witness, and I want to impeach them." That witness could be used to then get in the evidence that has been suppressed. It seems like an opportunity to get around the exclusionary rule, because paragraph (2)(B) says, "any prosecution to impeach a witness if the prosecution shows that the evidence was not obtained in substantial violation of rights of the witness." Therefore, she remarked, it seems like one wouldn't necessarily even have the defendant taking the stand in that situation; instead, statements made by a witness called by either the state or the defense could be used against a defendant. This possibility certainly raises concern, she added. MS. WILSON said that some version of the current evidence rule has been in effect since 1979, mentioning that there are specific Alaska cases in which the Alaska Supreme Court has used this rule. She agreed that the Alaska State Constitution is more broadly construed than the U.S. Constitution and, as a result, there are constitutional underpinnings to this rule regarding due process and other rights which insure that the police are not encouraged to behave illegally by canceling out the current rule regarding illegally obtained evidence if the defendant elects to testify. CHAIR McGUIRE remarked that at the federal level, a person would be subject to what is being proposed via HB 349 because the federal government has had a similar rule in place since 1971 due to a U. S. Supreme Court case. Number 1833 MS. WILSON pointed out, however, that Alaska laws do not mirror federal laws, adding that the Harris v. New York decision is an example of the Alaska Supreme Court disagreeing with the merits of a [federal] decision. She said that in many respects, Alaska has differed from the federal government in how it prosecutes cases, and mentioned the USA PATRIOT Act as an example. The right to privacy is in the Alaskan State Constitution but not in the Federal Constitution, she remarked, suggesting that none would want to minimize that right by comparing it to what might happen on that issue in federal court. CHAIR McGUIRE argued, however, that Alaskans also celebrate personal responsibility, and opined that a defendant who would attempt to use [the current rule] as a [sword] is a coward. She said that she is concerned about the defendant's rights, also, but [the situation that occurred in Anchorage] goes too far. In conclusion she said: I just think that you cannot use it as a [sword] ..., and you ought to have the ability, if you take the stand, to explain [a prior statement] away; if you made that statement under duress, if you made that statement because you didn't understand or out of confusion, you will be afforded the opportunity to explain that to a jury, but I don't think you can take the stand simply to use it as a [sword]. REPRESENTATIVE GARA said that a bill is never black and white and that sometimes when a bill passes, "a lot of things are better, and some things are worse, and if you don't pass the bill, a lot of things are bad, but some things are better." He characterized HB 349 as one of those bills. For example, if HB 349 is not passed, perhaps a certain number of defendants will get away without being held accountable, but if it is passed, perhaps law enforcement officers will receive the message that they can engage in illegal conduct without suffering any consequences. He indicated that he wanted to move beyond having the debate merely be: if one opposes the bill then one is pro- crime, and if one supports the bill then one is anti-civil liberties. REPRESENTATIVE GARA surmised that the circumstance the sponsors are trying to get to is the circumstance in which a defendant decides to testify, but has made, or is alleged to have made, prior inconsistent statements; the sponsors want to be able to impeach that defendant. He asked whether HB 349 allows illegally obtained evidence to be used even if the defendant doesn't take the stand. Number 2031 MS. WILSON said yes, noting that paragraph (2)(B) refers to impeaching a witness. REPRESENTATIVE GARA asked if there would be a way to word that provision so that it only addresses the issue of the defendant taking the stand. MS. WILSON suggested that changing the word "witness" to "defendant" would be an improvement. REPRESENTATIVE SAMUELS indicated that he would have Legislative Legal and Research Services look into that issue. CHAIR McGUIRE offered that the kind of situation the bill is attempting to address is when the defendant chooses to take the stand in a perceived attempt to use this law as a [sword]. REPRESENTATIVE SAMUEL said that it is not an easy issue, and gave examples of citizens being [victimized] by a guilty defendant who had confessed but was then acquitted. He said that this is how citizens lose faith in their government. There is a balancing act that needs to happen, he remarked. CHAIR McGUIRE agreed, adding that she didn't want to encourage police misconduct or coercion of defendants and witnesses. REPRESENTATIVE GRUENBERG referred to page 2, line 4, and asked whether that language contained a typo; specifically, did there need to be a "the" between "to" and "issue". In other words, should that language read: "if it is relevant to the issue". REPRESENTATIVE SAMUELS said he would research that point. Number 2248 ANNA FAIRCLOUGH, Executive Director, Standing Together Against Rape (STAR); Member, Anchorage Assembly, Municipality of Anchorage (MOA), asked whether the defendant actually had to use a violation of Miranda as a defense in order to trigger what is being proposed in HB 349. REPRESENTATIVE SAMUELS replied that it applies if the defendant chooses to testify that he is innocent, but there is an old statement admitting guilt; then the old statement is brought in and the issue of guilt or innocence is left up to the jury to decide. MS. FAIRCLOUGH surmised, then, that if the defendant chooses to use it as a [sword] so that evidence can't come forward, then he/she is the one who causes that evidence to be excluded, not the police officer. CHAIR McGUIRE agreed and said that it is the defendant who makes the plea for evidence to be excluded based on police misconduct [or] a Miranda violation; that evidence is then off the table. MS. FAIRCLOUGH restated her opinion that it wouldn't matter if the tape is lost or not as long as the defendant is not the one going forward using that excuse as his defense. REPRESENTATIVE GARA said that it won't matter if the defendant is the first one to claim the statement was taken illegally, because ultimately the court will address that issue. TAPE 04-4, SIDE B MS. FAIRCLOUGH relayed that she supports HB 349, adding that she wants to see credibility returned to the justice system. Number 2346 REPRESENTATIVE GRUENBERG made a motion to adopt [Amendment 1], to add "the" on page 2, line 4, between "to" and "issue". CHAIR McGUIRE asked if there was any objection [to Amendment 1]. REPRESENTATIVE SAMUELS said he had no objection to Amendment 1. [Although Representative Holm stated that he objected, this appeared to be in jest; therefore, Amendment 1 was treated as adopted.] REPRESENTATIVE GRUENBERG - turning attention to page 1, line 15, and on page 2, [line 7] - relayed that there was no such thing as a prosecution to impeach a witness. He said that impeachment is a trial technique, an evidentiary technique. He said he wanted to have that part of the bill clarified, perhaps changed, because there is "no such animal." CHAIR McGUIRE remarked that perjury would be a separate trial on the same basic [case]. REPRESENTATIVE GRUENBERG agreed, and suggested adding a comma after "prosecution" on page 1, line 15, and on page 2, [line 7]. He acknowledged, however, that it might be better to not limit the bill to a prosecution, but allow for impeachment in a civil context, also. Number 2248 CHAIR McGUIRE agreed, and asked Representative Samuels to investigate that issue. REPRESENTATIVE GRUENBERG noted that except in a civil case, the trier of fact cannot comment to the jury when somebody claims, for example, the privilege against self-incrimination. He said that if the evidence is illegally obtained, there would have to be a caution that it can only be used for the purpose of impeachment. He opined that such a caution would be absolutely essential for HB 349. He added that if the prosecution is going to be using illegal evidence for the limited purpose of impeachment, they should be required to give advance notice to the defense that if their witness takes the stand there will be a hearing outside the presence of the jury. The judge, then, would determine whether a cautionary instruction could be given or whether the prejudicial value would outweigh the probative value. He then turned to the issue of a civil prosecution, and suggested that that should be investigated as well. CHAIR McGUIRE, addressing Representative Samuels, asked that before the bill's next hearing, he give consideration to the issue of whether to include both civil and criminal cases, and to the issue of clarifying the bill as it relates to impeachment. REPRESENTATIVE SAMUELS said he thought the prosecution shouldn't have to give notice that it was going to implement a court rule. Instead, he opined, the defense lawyer should tell his/her client that if the client changes his/her story, the issue will come back to the table. He remarked that he'd hate to put a burden on the prosecution. REPRESENTATIVE GRUENBERG stated, however, that the danger is that in a criminal case, the jury can't help but consider illegally obtained evidence beyond the purpose of impeachment, and this could severely impact the rights of the defendant. What is normally done in that situation is for a hearing to be held outside the presence of the jury in order to argue that issue. But in order to do that, notice has to be given. The issue is not whether the lawyer knows the rules of evidence. If one waits until the person has taken the stand and "opened the door," then it's too late, he opined. Number 2007 REPRESENTATIVE SAMUELS maintained his belief that the prosecution does not know what is going to be said and the defense is not going to tell them. CHAIR McGUIRE said that the court would decide what to put into the jury instructions. She said she assumes that any judge would make it clear to the jury that they may only take the statements into account for impeachment purposes, not to the question of guilt or innocence. REPRESENTATIVE GRUENBERG pointed out that [those instructions] would be given at the time the testimony is given. CHAIR McGUIRE surmised that this issue wouldn't be addressed by the bill; rather, it will be decided by the court. REPRESENTATIVE GARA, in conclusion, pointed out that sometimes, when it is easier to prosecute a guilty person, it is then also easier to prosecute an innocent person. He suggested that a lot more discussion of the bill is needed to get a balance. [HB 349, as amended, was held over.]
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