Legislature(2005 - 2006)CAPITOL 120
01/18/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB326 | |
| HB323 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 326 | TELECONFERENCED | |
| *+ | HB 323 | TELECONFERENCED | |
| *+ | HB 321 | TELECONFERENCED | |
| + | SB 132 | TELECONFERENCED | |
HB 323 - DETENTION OF MATERIAL WITNESSES 2:39:22 PM CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 323, "An Act relating to material witnesses; amending Rule 58.1, Alaska Rules of Civil Procedure, and Rule 204, Alaska Rules of Appellate Procedure; and providing for an effective date." 2:39:49 PM REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor, explained that HB 323 allows the prosecutors and defense attorneys to apply to the Alaska Superior Court for a material witness order, establishes conditions and sets guidelines for handling a material witness, and gives powers to law enforcement officials to detain a material witness. He noted that Black's Law Dictionary [Sixth Edition] defines "material witness" in part as, "a witness whose testimony is crucial to either the defense or prosecution." He said that he introduced HB 323 because it is becoming apparent, particularly in Anchorage, that witnesses with crucial information are not coming forward or helping the police. Instead, people are resorting to taking matters into their own hands, thus endangering the lives of others. REPRESENTATIVE MEYER said that the spate of gang-related activities has brought this issue to the forefront because the police do not currently have the authority to take someone "downtown" when he/she clearly has information that the police need. House Bill 323 attempts to balance individuals' rights with their obligations. The bill places conditions on the issuance of a material witness order, and places strict conditions on the detention of a material witness. For example, a material witness must be someone who is unlikely to respond to a subpoena, an arrest is only in order if there is probable cause that the person will not appear at the "material witness hearing" unless he/she is arrested, a material witness detained by the police without a warrant must be immediately brought before the nearest judge, and a material witness may not be held in a correctional facility and must be provided with room and board similar to what is provided to a juror. In conclusion, he said he anticipates that the proposed statute will be used very infrequently and only in the most serious of crimes. 2:43:31 PM REPRESENTATIVE GRUENBERG said he questions the accuracy of the bill's zero fiscal notes. MICHAEL PAWLOWSKI, Staff to Representative Kevin Meyer, House Finance Committee, Alaska State Legislature, sponsor, in response to a question, made mention of a statute pertaining to the bail of a material witness; he later indicated that he would have to do further research in order to provide the committee with the correct statutory citation. CHAIR McGUIRE asked whether there is a provision in the bill pertaining to the protection of material witnesses. REPRESENTATIVE MEYER said no, but offered his belief that a material witness would be extremely important to law enforcement and thus would receive some form of protection. CHAIR McGUIRE asked Representative Meyer whether he would object to the addition of a provision stipulating the protection of a material witness. [Representative Meyer's response was inaudible.] REPRESENTATIVE GRUENBERG asked Mr. Pawlowski to research what other states have drafted for their witness protection Acts, adding that he is concerned that [the bill] could be putting some people in danger. 2:47:08 PM WALT MONEGAN, Chief, Anchorage Police Department (APD), Municipality of Anchorage (MOA), relayed his belief that HB 323 would be used infrequently and primarily only for the most serious of crimes. He offered an example of a victim who is not willing to testify, and suggested that HB 323 could be used to get information from that victim in order prosecute a case in a timely manner. He said that the only area of the bill that he has concern with pertains to how it would work in gang-related situations, because as currently drafted, even though a material witness in a gang-related shooting, for example, would be taken before a judge or magistrate, that witness could not be compelled to testify. MR. MONEGAN said that law enforcement officers want the ability to bring a witness into the police station for an hour or so and gain his/her cooperation. He noted that people will vent on the police officer if they are not allowed to feel safe, and so providing an officer with the ability to bring a witness into the police station for an hour or so would allow the witness some "decompression" time. 2:51:56 PM REPRESENTATIVE GARA asked whether currently a witness can be subpoenaed for a pre trial deposition. MR. MONEGAN relayed that if a witness is already hostile, he/she will not volunteer to talk about anything and will probably ignore a subpoena or "duck" the subpoena service altogether because he/she doesn't want to get involved in a case or with the police. He added, "By the other rules that dictate [to] the court how they operate, we're kind of stymied in our ability to find someone to get all the good information, on an occasional basis, and still meet all the time restraints ... that must be handled by the courts." REPRESENTATIVE GARA said he is struggling with the concept of allowing law enforcement the ability to arrest someone if he/she is innocent, and the bill would allow for the temporary arrest of an innocent person simply because law enforcement thinks that he/she might have information. MR. MONEGAN clarified that the goal would be to get a person out of an environment in which there is a strong code or tradition inhibiting him/her from talking to the police. In such an environment, victims attempt retaliation on their own, and although there is a public outcry against [gang-related violence], police are stymied because they are unable to obtain proof against the perpetrators of [gang-related] violence. He added: I'm certainly not willing to swap our civil liberties [or] to compromise them to a point where we become a police state, because no one wants that, especially us. What we're trying to find is a middle ground that'll allow people to "de-stress" or stop and reflect alone, privately, away from the group, away from the crowd, away from the gang, so that we can actually get some information. ... 2:56:03 PM CHAIR McGUIRE asked Mr. Monegan to comment on the issue of protection for those who are compelled to testify as material witnesses; for example, witnesses in domestic violence (DV) situations. MR. MONEGAN relayed that he, himself, has taken a turn at guarding a witness in a hotel room in order to make sure that no harm befell that witness. The costs of protecting a witness in a crucial case, he indicated, are well worth getting a conviction. CHAIR McGUIRE said she is concerned about long-term protection for material witnesses. She referred to Representative Gruenberg's request for information regarding what other states do with respect to material witness protection programs. "Anchorage is sadly becoming a place where some of these higher- level, higher-stakes crimes are taking place, and so I'm thinking a little bit longer term even than just that immediate ... time period [before and during the trial]," she added. MR. MONEGAN said that certainly if the crime involves federal violations the APD can request [assistance] from the federal government. He used the example of a case wherein a young man was shot to death but none of the 50 people present were willing to testify as a material witness. Currently the police can't force someone to testify in such a case, and so [the APD's goal] is to give such individuals a chance to reflect on whether they would indeed be willing to testify as material witnesses. 3:00:36 PM REPRESENTATIVE GARA said he would like to meet the APD's concerns without allowing the police to arrest a potential witness without a warrant. He therefore suggested deleting the provisions that currently allow this, and instead adding language which says that a person has a legal obligation, if a police officer believes that the person is a witness to a crime, to provide the officer with the person's name, address, and contact information. The police, then, wouldn't have to worry about "losing" the person, and it would still be up to the person whether he/she would be willing to testify as a material witness. Such language would eliminate the problem of [intentionally] arresting an innocent person. MR. MONEGAN said that in an ideal world, that would work; he predicted that what he will encounter, however, are individuals who make excuses for not providing the aforementioned information or who will simply give false information. REPRESENTATIVE GARA suggested that the language could be written in such a way as to inhibit such occurrences. 3:03:34 PM MR. MONEGAN explained that the involuntary detention that he is proposing would be similar to what is used in "non-custodial interviews," and pointed out that the best time to get information from a witness is close to the event. REPRESENTATIVE GRUENBERG noted that the residents of his district keep a low profile and the last thing they want to do is get involved with [being a witness], because they have the fear that their involvement with the people against whom they testify would only be beginning. Society, if it requires that people get involved in being material witnesses, has a responsibility to make sure that those people are protected after they testify. MR. MONEGAN said he won't disagree with that point, but reiterated that he is only asking for the opportunity to give a person time, away from the situation, to think about cooperating; in that time, the police can attempt to build a rapport with the person, gain his/her trust, and present him/her with options - for example, simply calling "Crime Stoppers" later on and providing information anonymously. 3:07:31 PM REPRESENTATIVE GRUENBERG said that in order for the police to get the cooperation they want, ultimately it will take more than simply developing a rapport with the person in a quiet setting and asking him/her to provide information anonymously; instead, it will require that the state be able, on a long-term basis, to protect the person. MR. MONEGAN said he wouldn't argue that point, and remarked that one of his challenges is to convey to individuals that the more they keep quiet about crimes in their neighborhood, the more they are allowing the situation to continue, and that fear and apathy are allies of crime. He mentioned one situation in which the people from a church group took steps to find out, via a poll, how residents in the neighborhood felt about the crime that was occurring in it; this poll in and of itself had a chilling effect on the number of crimes being committed in that neighborhood. He indicated that the people must be brought to understand that collectively they can make a difference simply by standing together and indicating that crime will not be tolerated. 3:09:54 PM CHAIR McGUIRE relayed that HB 323 would be held over.
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