Legislature(2005 - 2006)
08/04/2006 02:51 PM House JUD
| Audio | Topic |
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| Start | |
| SB3005 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 3005 - DETENTION/IDENTIFICATION; CONTEMPT 2:51:35 PM CHAIR McGUIRE announced that the only order of business would be CS FOR SENATE BILL NO. 3005(JUD) am, "An Act relating to contempt of court and to temporary detention and identification of persons; and providing for an effective date." 2:52:02 PM MICHAEL MALONE, Intern to Senator Con Bunde, Alaska State Legislature, explained on behalf of Senator Bunde, sponsor of SB 206, that SB 3005 will balance the need to protect individual freedom with the ability to prosecute crime effectively and provide defendants with witnesses on their behalf. Witnesses are crucial to both the defense and prosecution, but unfortunately material witnesses often refuse to cooperate with law enforcement officials, and this significantly impedes the ability of the criminal justice system to bring indictments or prosecute crimes; SB 3005 protects material witnesses from unreasonable arrest or confinement, and helps ensure the availability of crucial testimony. MR. MALONE indicated that SB 3005 has undergone minor changes since its introduction and so is now slightly different than HCS CSSB 206(JUD), which was reported from the House Judiciary Standing Committee on 5/5/06. The current version of SB 3005 limits applicable property crimes to only the most serious arson cases, and limits applicable felony crimes against a person to ensure that victims of domestic violence (DV) are not charged with a misdemeanor for refusing to be photographed. Under current common law, he posited, law enforcement officers are allowed to gather evidence at the scene of any crime, including taking photographs, and proposed AS 12.50.201(e) clarifies that the bill is not attempting to overrule any power granted to peace officers by the court system. REPRESENTATIVE GRUENBERG asked what the difference was between CSSB 3005(JUD) and CSSB 3005(JUD) am. 2:54:47 PM DEAN GUANELI, speaking as the former chief assistant attorney general in the Criminal Division of the Department of Law (DOL), relayed that the amendment adopted on the Senate floor in part further restricts the types of crimes for which a person could be detained; for crimes against a person, one may only be detained if the situation involves a felony crime. [Chair McGuire turned the gavel over to Representative Anderson.] REPRESENTATIVE GRUENBERG pointed out that at the time a gang- related crime occurs, law enforcement won't know whether the victim of an assault will develop a more serious injury, and thus he would be prepared to delete the word "felony" from page 2, line 15. MR. GUANELI explained that the aforementioned Senate amendment, which was introduced by Senator Bunde, incorporated that limitation at the request of Senator French. Mr. Guaneli offered his understanding that Senator French felt that many witnesses may also be victims of domestic violence and as such shouldn't be forced to have his/her picture taken. REPRESENTATIVE GRUENBERG argued that at the time a gang-related crime occurs, law enforcement won't know whether the victim of what appears to be a misdemeanor assault will actually develop a more serious injury and thus end up being the victim of a felony assault. MR. GUANELI noted that the kinds of situations that the Anchorage Police Department is concerned about are situations involving guns, knives, and clubs, all of which give rise to felony-level conduct. It will be the rare instance wherein a gang-related fight doesn't include weapons of some kind and an ostensibly misdemeanor injury later develops into a felony-level injury. Furthermore, Mr. Guaneli remarked, Senator French also pointed out that the legislation is allowing law enforcement to detain and photograph - and in some cases fingerprint - completely innocent citizens, and this should be done in only the most serious circumstances. Allowing this detention only for felony crimes will give some level of comfort to a court that reviews a challenge to this legislation, he surmised, and thus he relayed to Senator Bunde that the felony-level crime threshold was not harmful. REPRESENTATIVE GRUENBERG pointed out, though, that a barroom brawl could result in what at first appears to be a mere misdemeanor-level injury actually developing into a felony-level injury. 3:03:24 PM REPRESENTATIVE GARA said he wants to ensure that the identification requirements of the bill won't endanger witnesses to gang-related crimes, and hence will be offering an amendment to address this concern of his. He then referred to the language on page 2, line 14, which stipulates that a person may be detained simply for being "near" the scene of a crime, and said he is concerned that it will give law enforcement the right to do "neighborhood sweeps." He indicated that he would like to define the term, "near" so as to ensure that it won't include locations where one couldn't have seen or heard the crime; in other words, "near" should mean a location within viewing or listening distance of the crime. He opined that this will be sufficient for law enforcement since the standard will be reasonable suspicion. REPRESENTATIVE GARA, in response to questions, referred to Amendment 1, which, with handwritten corrections, read [original punctuation provided]: at p. 2 line 14, Delete "near" insert "within viewing or listening distance of" REPRESENTATIVE GRUENBERG said he'd had a similar concern and so had prepared an amendment that replaces the words, "near the scene" with the words, "in the immediate vicinity". MR. GUANELI explained that the whole concept of detaining people who may have witnessed or been "near" the scene of the commission of a crime comes from the model code of pre- arraignment procedure by the American Law Institute and is not viewed as particularly threatening by legal scholars. Police will only stop a person who they feel is in a position to have information; to limit those who may be detained to only those who've been within viewing or listening distance of a crime will remove law enforcement's ability to detain someone a block away who may have seen the getaway car speeding away. He surmised that law enforcement officials - when responding to felony-level assaults, arson, criminal mischief, and misconduct involving weapons - are only going to be seeking information from people whom they believe might have heard or seen something, those most likely to aid in the material investigation. REPRESENTATIVE GARA asked what kind of guidance will be given to police with regard to how they should interpret what the term, "near" means. 3:16:45 PM MR. GUANELI indicated that the DOL doesn't advise the police on how to do their job; the police have a wide range of discretion regarding how to deal with certain situations, and he is not in a position to say how the police will deal with gang-related incidents, particularly given the wide range of circumstances and surroundings that might be present at any particular incident. The police, he predicted, are going to deal with such situations as they do all situations - with judgment and discretion and under review of the courts if there is a challenge. REPRESENTATIVE COGHILL expressed a preference for the current language of, "at or near". MR. GUANELI offered his belief that SB 3005 will allow the police to stop people and ask them who they are, and doesn't require the people to say anything other than who they are. Most people who witness something will want to cooperate with the police, and under the bill, those few who don't wish to cooperate will be required to either show or provide some form of identification (ID) or face receiving a subpoena to testify before a grand jury. Ultimately, if such people refuse to provide identification or refuse to be photographed or fingerprinted, they could be charged with a crime, but most people, he predicted, will simply choose to provide law enforcement with their ID. REPRESENTATIVE WILSON surmised that Amendment 1 will defeat the purpose of the bill because the person will simply be able to state that he/she neither saw nor heard anything. MR. GUANELI concurred that Amendment 1 seems to contain a built- in excuse. 3:23:40 PM WALT MONEGAN, Chief, Anchorage Police Department (APD), Municipality of Anchorage (MOA), with regard to Amendment 1, pointed out that the potential witness may not know that he/she has witnessed something because he/she may not have had a direct connection with the crime itself; for example, a person might not be within sight or hearing of a crime but does notice a vehicle speeding away from the area, and the police ought to be able to ask that person what he/she saw or heard and obtain contact information so as to be able to question that person again. He also pointed out that the APD is not generally called right away, and so persons involved in a gang-related crime may get quite a distance away from the scene, and thus the police ought to have some flexibility with regard to who they can question. REPRESENTATIVE GARA argued that a police officer won't have to prove that a person heard or saw something in order to detain him/her; rather, the officer merely has to have a reasonable suspicion that the person might have seen or heard something. So it won't matter that the person claims not to have seen or heard anything. Acknowledging the difficulty of defining what does constitute "near", he suggested that they leave that language as is and merely say what doesn't constitute "near"; for example, the term "near" shall not be interpreted to mean a location from which the person could not have heard or seen evidence of the crime. In this way, if someone couldn't have seen or heard something, he/she can't be [charged with a crime] for not providing law enforcement with ID. MR. MONEGAN explained that normally, when officers arrive on the scene, after they have stabilized the situation and gotten an idea of what occurred, they will canvass the neighborhood to see if anyone has seen or heard anything, and the officers must take peoples' answers at face value. But if a person who was in the immediate vicinity of a crime claims not to have seen or heard anything, [then under the bill's current language] the police would be allowed to obtain that person's ID, photograph, or fingerprints in order to question him/her later. REPRESENTATIVE GARA asked Mr. Monegan whether he is amenable to adding language which stipulates that "near" does not mean a location from which the person could not have heard or seen evidence of the crime. MR. MONEGAN, in response, asked members to consider a situation in which a witness saw the crime but by the time the police arrive has fled to his/her house two blocks away, but police are directed to the witness by someone else who saw him/her leaving the scene. CHAIR McGUIRE and REPRESENTATIVE GARA suggested that "near" should be linked with "at the time the crime was committed". MR. MONEGAN agreed. REPRESENTATIVE COGHILL noted that HCS CSSB 206(JUD) included the phrase, "during the commission of a crime", and suggested that they insert that language into SB 3005. CHAIR McGUIRE pointed out, though, that the concern with that language is that it excluded people that may have fled, or that may be around, that might have information that could help lead to solving the crime, and surmised that they shouldn't go back to that language. She acknowledged that Representative Gara has highlighted a problem wherein the police might use the language currently in the bill to conduct neighborhood sweeps without cause. She suggested that the phrase, "within viewing or listening distance at the time the crime occurred" would get them where they want to go. She surmised that police officers are trained to not misuse their powers and responsibility. MR. MONEGAN concurred, and offered that there is also sufficient oversight of what officers do should anyone challenge their actions under this legislation. 3:34:36 PM REPRESENTATIVE GARA said: "What I'd like to do ... is say, 'near' doesn't include if you're so far away that you couldn't have seen it or heard it, and then I'll put in a sentence that says a person who was near the scene of the crime is subject to this section even if she or he left the area before the peace officer detains the person". MR. MONEGAN said such language would work for him. REPRESENTATIVE KOTT said he wants to ensure that they don't exclude someone who might have witnessed someone fleeing the scene of the crime. REPRESENTATIVE GARA suggested that that is a flaw in the bill, not in Amendment 1. MR. GUANELI, in response to comments and a question, said he doesn't believe there is a flaw in the bill with regard to people who flee. The bill is structured such that the police will have the authority to stop someone who is near the scene of the crime but not if that person is a mile away, for example. However, if a crime is committed where no one can see it or hear it, but yet a person sees someone fleeing the area, the police ought to be able to obtain information from that person. He added, "This is an important piece of legislation, ... and I hate for it to get bogged down on what I'm not certain are realistic fears about ... police abuses of something that ... we haven't even tried yet. MR. MONEGAN pointed out that police officers are highly motivated with regard to cases that involve violent crimes, that such cases have a higher priority, and that police won't be asking for information from people who were not in the area where a crime occurred until someone at the scene gives police a reason to start questioning people away from the scene; when someone does have information to offer or is in a position to offer some, the police ought to be able to obtain contact information from him/her. He added that when police are investigating a serious crime, that is their focus and they do not spend time canvassing the neighborhood for small infractions, and thus are unlikely to pursue someone simply for refusing to provide contact information unless the police have a reasonable suspicion that the person is somehow involved in the crime. CHAIR McGUIRE relayed that Amendment 1 would be set aside. 3:40:30 PM REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 2, which, with handwritten corrections, read [original punctuation provided]: Page 3, line 13 Change "is" to "may be" REPRESENTATIVE GRUENBERG explained that "may be" is the correct technical term because the court won't yet have made a determination. He offered his understanding that the administration has no objections to Amendment 2. CHAIR McGUIRE asked whether there were any objections to Amendment 2. There being none, Amendment 2 was adopted. REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 3, which, with handwritten corrections, read [original punctuation provided]: Page 3, line 17 After "subpoena" insert: "or the lead investigator" REPRESENTATIVE GRUENBERG explained that the reason for providing for this option is that it may be difficult to locate the same officer who served the subpoena in order to show him/her the identification. He offered his understanding that the administration has no problem with Amendment 3. CHAIR McGUIRE asked whether there were any objections to Amendment 3. There being none, Amendment 3 was adopted. 3:42:39 PM REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 4, which, with handwritten corrections, read [original punctuation provided]: Page 2 line 31 after "photographic identification", insert the following ", or other valid identification that the officer finds to be reliable to identify the person," Page 3 line 18 after "photographic identification", insert the following ", or other valid identification that the officer finds to be reliable to identify the person," REPRESENTATIVE GRUENBERG noted that not everyone has photographic identification, so Amendment 4, which was drafted by Mr. Guaneli, would allow other forms of identification to substitute. He offered his understanding that the administration was amenable to Amendment 4. CHAIR McGUIRE asked whether there were any objections to Amendment 4. There being none, Amendment 4 was adopted. The committee took an at-ease from 3:43 p.m. to 3:48 p.m. 3:48:03 PM REPRESENTATIVE GRUENBERG [made a motion to adopt] Amendment 5, which read [original punctuation provided]: AS 09.50.020(a) is repealed and reenacted to read: Sec. 09.50.020. Penalty. (a) A person who commits a contempt is guilty of a class A misdemeanor. REPRESENTATIVE GRUENBERG said that although SB 2005 in part attempts to modernize the contempt statutes, which are used by the court to enforce its orders and control the integrity of its process, Amendment 5 would update and simplify what the punishments will be by charging a violator with a class A misdemeanor, which could result in someone having to serve up to a year in jail and being fined up to $10,000. He pointed out that under Amendment 5, the courts will have complete discretion over the matter of fines and jail time for contempt violations. MR. GUANELI indicated that he is satisfied that in most instances the penalties for contempt are insignificant, and that as a practical matter the current contempt provision is almost never used. He characterized Amendment 5 as effecting a good change because it will provide the court with more authority. CHAIR McGUIRE asked whether there were any objections to Amendment 5. There being none, Amendment 5 was adopted. 3:52:20 PM REPRESENTATIVE GARA withdrew Amendment 1. REPRESENTATIVE GARA made a motion to adopt Amendment 6, which read [original punctuation provided]: Insert at p.2 line 23 "(4) The term "near" shall not be interpreted to mean a location from which the person could not have heard or seen evidence of the crime, or flight from the crime. A person who was near the scene of a crime is subject to this section even if the person left the area before the peace officer detains the person." REPRESENTATIVE COGHILL objected. REPRESENTATIVE GARA offered that Amendment 6 will address his concerns in that although it will leave the term, "near" in the bill, it will also stipulate that "near" won't mean a distance so far away that the person couldn't have either seen or heard something at the scene of the crime or the flight away from the scene of the crime. REPRESENTATIVE COGHILL noted that under proposed AS 12.50.201(a)(2), the police officer, before being able to detain a person, must have a reasonable suspicion that the person has information of material aid in the investigation of the crime. MR. GUANELI indicated that his comments regarding Amendment 1 also apply to Amendment 6. In response to a comment, he said he is concerned about requiring the police to calculate whether a person they wish to ask questions of was able to hear or see anything, because he does not want officers to hesitate when trying to decide who they have a right to speak to. "I just worry that we aren't going to be able to anticipate all of the situations that are going to confront the police, and that by being ... overly cautious and overly suspicious about the police, that we're going to hamper their ability to do their job," he added. REPRESENTATIVE GARA pointed out, however, that the police will be asking themselves whether someone could have seen or heard something anyway, and he just wants to prevent the police from using the bill to go a few blocks away and start doing a neighborhood sweep. He suggested that the courts will ultimately be deciding what constitutes "near". 3:58:49 PM SENATOR CON BUNDE, Alaska State Legislature, speaking as the sponsor of SB 206, simply asked the committee to come down on the side of stopping violence and gang problems. REPRESENTATIVE COGHILL reiterated his belief that when proposed AS 12.50.201(a)(1) and (2) are taken together, it means that before detaining someone for information, the police must have a reasonable suspicion that that person has information that could be of material aid in the investigation of a specific crime. A roll call vote was taken. Representatives Gara and McGuire voted in favor of Amendment 6. Representatives Coghill, Wilson, Kott, Anderson, and Gruenberg voted against it. Therefore, Amendment 6 failed by a vote of 2-5. 4:00:59 PM REPRESENTATIVE GARA [made a motion to adopt] Conceptual Amendment 7, which, with handwritten corrections, read [original punctuation provided]: Insert new 12.61.120(b), and re-letter accordingly. "(b) If a person is required to provide information as a witness, or potential witness under AS 12.50.201, the information under subsection (a) may not be provided to a defendant if providing this information creates a public safety risk to the person. If the defendant is without counsel, the person may be made available for interview with the defendant at a place, and in a manner, that protects the defendant's constitutional right to obtain evidence, and protects the persons [sic] safety." REPRESENTATIVE GARA said he wants to ensure that a witness isn't required to provide identifying information to a gang member who would later hurt the witness. He offered his understanding that under current law a person doesn't have to provide information to the defendant unless the defendant doesn't have an attorney. Conceptual Amendment 7 maintains that requirement while also requiring that the witness is protected. REPRESENTATIVE GARA relayed that he wished to amend Conceptual Amendment 7 to the effect that "these protections are in addition to the other protections we have for witnesses." REPRESENTATIVE GRUENBERG said he would support such an amendment to Conceptual Amendment 7. REPRESENTATIVE GARA made a motion to amend Conceptual Amendment 7, to add after the last sentence the words, "The witness protections in this section are in addition to the protections in AS 12.61.120". [Conceptual Amendment 7 was treated as amended.] 4:05:31 PM LAUREN RICE, Staff to Senator Con Bunde, Alaska State Legislature, on behalf of Senator Bunde, sponsor of SB 206, offered her understanding that current statute stipulates how the identity of victims of sexual assault shall be protected, and asked whether [Representative Gara's goal could be accomplished] by simply including material witnesses in that statute. She recalled that the Anchorage Daily News had printed information about a witness at the scene of a gang-related shooting, and this was not appreciated by the APD; the newspaper had printed the physical characteristics of the witness, the area he lived in, and [a description of] his car, and under the existing statute pertaining to victims of sexual assault, the newspaper would not have been allowed to print such information had the person been a victim of sexual assault. In response to questions, she said that Senator Bunde had intended to work on this issue next year, and that she would like to hear Mr. Guaneli's comments on Conceptual Amendment 7, as amended. MR. GUANELI said that there is a specific statute that says information about victims of sexual offenses shall be withheld from public inspection; furthermore, agencies can't be forced to disclose the names of victims. Limiting what information can be printed in a newspaper, however, is a broader topic involving the First Amendment. He characterized Representative Gara's point as a good one, and noted that current law contains some protections for the addresses and telephone numbers of victims and witnesses, and so even though the prosecution is ordinarily required to turn everything over to the defense, the prosecution can't be forced to turn over that particular type of information unless the court finds good cause for doing so. Also there is a specific statute which says that with certain types of crimes, if the judge finds that the victim may be in jeopardy, those types of information don't have to be provided because doing so might endanger the victim. MR. GUANELI characterized the first sentence of Conceptual Amendment 7, as amended, as appropriate. With regard to the second sentence, he pointed out that there is an existing court rule that speaks to depositions in criminal cases, and so on the issue of making a witness available for an interview, they probably ought to proceed under those existing court rules. REPRESENTATIVE GARA, expressing an interest in crafting some sort of witness protection mechanism, withdrew Conceptual Amendment 7, as amended. CHAIR McGUIRE remarked on possibly inserting language into the bill asking for a report that would provide the legislature with suggestions for witness protection mechanisms. She added, "We all wish that people would be willing to be part of solving crimes and to be forthcoming, ... [but] we know that they're not; that's the purpose of the bill, it's to say ... we're going to reach in there with the heavy hand of the government and get this information because there's a greater goal of solving the crime." That being said, the situation could arise wherein the mother of a couple of children witnesses a crime and knows that the defendant knows who she is; under the current language, the woman would have to face either putting herself and her children in jeopardy or not complying with the law. Therefore, the bill should require that recommendations be provided to the legislature regarding witness protection mechanisms. MS. RICE reiterated that Senator Bunde was intending to introduce legislation next year that would deal with such concerns, adding that perhaps a report of the kind Chair McGuire mentioned is worth looking into. CHAIR McGUIRE, in response to a question, noted that the bill has an immediate effective date. 4:16:58 PM MR. GUANELI, in response to questions, relayed that AS 12.61 also covers a number of protections for witnesses; that there is not a witness protection program at the state level; and that he doesn't know how successful the federal program has been, though it is a controversial program and has been subject to a number of abuses. In Alaska, he surmised, most often a witness will have a fear of immediate retribution, which the first part of Conceptual Amendment 7, as amended, addressed. CHAIR McGUIRE observed that it is not yet known what the repercussions of Anchorage's mounting gang violence will be. The neighbors of gang members are going to continue to live in neighborhoods where gang violence occurs but will now be put in a position of having to provide information about those that could retaliate. CHAIR McGUIRE referred to Conceptual Amendment 8, which, with handwritten corrections, read [original punctuation provided]: The state has an interest in protection [sic] witnesses from violence or other danger. The Department of Public Safety shall provide a report to the legislature by february 1, 2007. The report shall propose workable measures to protect witnesses who must provide information under SB 3005, and who might be endanged [sic] by providing their identifying information to other persons, including gang members, who might endanger a witness providing such information. CHAIR McGUIRE characterized Conceptual Amendment 8 as at least a statement of intent. 4:22:23 PM REPRESENTATIVE GARA made a motion to adopt Conceptual Amendment 8. CHAIR McGUIRE made a motion that all members of the House Judiciary Standing Committee be shown as co-sponsors of Conceptual Amendment 8. There being no objection, it was so ordered. CHAIR McGUIRE asked whether there were any objections to Conceptual Amendment 8. There being none, Conceptual Amendment 8 was adopted. REPRESENTATIVE GARA said he would still try to craft something regarding witness protection as outlined in the first sentence of Conceptual Amendment 7, as amended, before the bill is heard on the House floor. 4:23:37 PM REPRESENTATIVE COGHILL moved to report CSSB 3005(JUD) am, as amended, out of committee with individual recommendations and the accompanying zero fiscal notes. There being no objection, HCS CSSB 3005(JUD) was reported from the House Judiciary Standing Committee.
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