Legislature(1993 - 1994)

03/31/1994 08:10 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HB 524 - ARREST FOR VIOLATING RELEASE CONDITIONS                             
  HB 525 - CHARACTER EVIDENCE IN CRIMINAL TRIALS                               
  HB 527 - EXTENDED PROBATION FOR CERTAIN CRIMES                               
  HB 528 - PEREMPTORY CHALLENGE OF JURORS                                      
                                                                               
  Number 437                                                                   
                                                                               
  CHAIRMAN  PORTER  asked  Dean  Guaneli  to come  before  the                 
  committee to explain HB 524, HB 525, HB 527, and HB 528.                     
  DEAN  GUANELI,  Chief,  Assistant  Attorney  General,  Legal                 
  Services Section, Department of Law, explained that the four                 
  bills  are  four of  the  six  bills commonly  known  as the                 
  Governor's  crime  package  for  this  year.   He  expressed                 
  appreciation to the committee for assistance in getting them                 
  heard on fairly  short notice.  The  Governor introduced six                 
  bills, and in  particular, these  four were  the product  of                 
  many months of work by members of the  Department of Law and                 
  other justice agencies.   At the request of  former Attorney                 
  General Charlie  Cole, they  were directed  to come up  with                 
  bills  that  would  combat  domestic   violence  and  sexual                 
  assault, that would protect women and children, and would be                 
  simple, straight forward, direct, and narrowly focussed.  In                 
  addition, they were asked  to come up with bills  that would                 
  have little or  no cost to  the criminal justice system;  in                 
  other words, little or  no direct fiscal impact.   The bills                 
  before the committee are HB 524, HB 525, HB 527, and HB 528.                 
                                                                               
  Number 463                                                                   
                                                                               
  MR. GUANELI explained HB  524 would make changes in  the way                 
  people can  be arrested  after  they have  been released  on                 
  bail, following a  charge of domestic violence.   Currently,                 
  under  the  law, someone  can  beat  up his  wife,  commit a                 
  domestic assault, be  arrested; and  ordinarily, a court  is                 
  going to  release that person  from custody  within a  short                 
  period of time.   As  a condition of  that person's  release                 
  from custody, the person  may be ordered not to  contact his                 
  spouse, girlfriend,  ex-wife, etc, to  refrain from alcohol,                 
  to not possess any weapons, to do any variety of things that                 
  will protect the public  and make sure the person  gets back                 
  to court on schedule.   Often in these cases,  because there                 
  is  so  much emotion  involved in  them,  a person  does not                 
  comply  with  those conditions.   He  may  come back  to the                 
  woman's house in  the middle of  the night, pounding on  the                 
  door, breaking windows, that sort of thing.  That would be a                 
  violation of his conditions  of release.  In order  for that                 
  person to be  arrested, a police  officer could not make  an                 
  immediate arrest.  The  police officer would have to  find a                 
  judge, present  some information  to  the judge  and get  an                 
  arrest warrant, and then go and find that person, and arrest                 
  him.    That adds  a  significant  portion of  delay  in the                 
  process and is something we that needs to be corrected.  The                 
  way  HB  524 proposes  to correct  that  is to  allow police                 
  officers, upon having reasonable information that the person                 
  has violated  his conditions  of release  in those kinds  of                 
  cases, to make  an immediate  arrest of that  person.   They                 
  would not have to go before a judge and have that  period of                 
  delay.  This  is not  anything that is  terribly foreign  in                 
  Alaska  law.   There  are a  number  of crimes  that  can be                 
  subject to immediate arrest, even  if they are not committed                 
  in  the  officer's  presence.    In addition,  you  have  to                 
  contrast this situation where a person has already committed                 
  a crime, already  been charged with an offense  and released                 
  by the judge, with a situation where a woman has gone into a                 
  civil  court  and  gotten a  domestic  violence  restraining                 
  order.  In  other words,  a person  is not  alleged to  have                 
  committed any crime, but  the woman says she is  afraid, and                 
  the judge says he agrees, and orders the man not to  contact                 
  this woman.   If that  person does contact  the woman,  that                 
  would  be,  under  Alaska  law,  another separate  crime,  a                 
  violation of a  domestic violence  restraining order.   That                 
  person could  be immediately  arrested right there.   So  we                 
  have the situation where a woman who has not been assaulted,                 
  but  has  gone into  civil  court and  gotten  a restraining                 
  order, if that  person violated  that restraining order,  he                 
  can  be immediately arrested.   However, if  she has already                 
  been assaulted,  and already  had a  black eye  or a  broken                 
  nose, and  the person  has been  charged with  a crime,  and                 
  released on conditions of bail,  and contacts her, he cannot                 
  be arrested.   It is a  situation where victims of  domestic                 
  violence who turn to the criminal justice system,  and think                 
  they  are  being  protected,  actually  have  somewhat  less                 
  protection after an  offense has  occurred than someone  who                 
  goes  into  civil   court  and  gets  a   domestic  violence                 
  restraining  order.  This  bill is designed  to correct that                 
  anomaly in the  law.  It is  a fairly straight forward,  and                 
  good idea that should be adopted.                                            
                                                                               
  Number 530                                                                   
                                                                               
  CHAIRMAN  PORTER  announced that  there  were two  people in                 
  Anchorage  wishing to testify on  some of these bills, Brant                 
  McGee and  Barbara Brink.   He  said as  the committee  goes                 
  through the bills, Mr. McGee and Ms. Brink will be given the                 
  opportunity to comment on each bill.  For the information of                 
  the  committee, in  overall laws  of arrest, an  officer can                 
  make an arrest  for a felony if  he has reasonable cause  to                 
  believe  that it happened and this  person did it.  In other                 
  words, it  does not have  to occur in  his presence.   For a                 
  misdemeanor,  there  are exceptions  to  the rule,  and this                 
  would be another  one, but  the general laws  of arrest  are                 
  that you cannot  make an arrest for a misdemeanor  if it did                 
  not appear in your presence, without an  arrest warrant from                 
  a judge.                                                                     
                                                                               
  Number 541                                                                   
                                                                               
  BARBARA  BRINK,  Public  Defender's  Office,  testified  via                 
  teleconference from Anchorage.  She  stated HB 524 basically                 
  changes  the  procedures, so  they  are in  essence, locking                 
  people up first, and asking questions  later.  She asked the                 
  committee  not  to adopt  this,  because the  current system                 
  works well.   In most of  our major communities and  many of                 
  our rural communities, we  have 24 hour magistrates who  can                 
  be  contacted any time of the day or  night.  If there is an                 
  emergency situation involved,  certainly the police  officer                 
  would directly contact that magistrate  and have the warrant                 
  issued for someone's  arrest.  She discussed how  an alleged                 
  bail violation is handled.  Ms Barbara Brink would receive a                 
  call from the  District Attorney's office telling  her there                 
  has  been  an   allegation  her  client  has   violated  his                 
  condition.  She immediately contacts her client, and usually                 
  the third  person (inaudible).  The third person usually has                 
  been appointed to watch over him, and bring him to court the                 
  exact same day.  At that time  they are given a fair hearing                 
  over whether or not there has actually been a bail violation                 
  or  not.    The  problem  is  that  any  of  these  domestic                 
  violations  and  any  allegations  of  abuse between  family                 
  members are now congruent for manipulation of the system, or                 
  allegations  that  are not  exactly  truly understood.   Ms.                 
  Brink  gave  the example  of  a  hearing in  front  of Judge                 
  Johnson.  Judge Johnson and the   District Attorney had been                 
  told that the third party, the  person in charge of watching                 
  her  client  had  called into  the  magistrate's  office and                 
  reported a violation.  The third party testified  under oath                 
  that  she  had not  called anybody.    In fact,  someone had                 
  (inaudible)  called and  made a  claim that  the  client had                 
  violated  his bail condition.   Under the current system, he                 
  was allowed to a full and  fair hearing.  He was not  locked                 
  up unjustly.  Under this  proposed procedure, he would  have                 
  been immediately  subject to  arrest, would  have spent  the                 
  night in  jail, and would not have had a full hearing before                 
  the court.   He would  have spent a  considerable amount  of                 
  time in jail, waiting to find  out what the allegations were                 
  and what the evidence  was.  Ms. Brink said  she understands                 
  the  committee's concerns,  but  she  believes that  whether                 
  there are actual  dangers of violence,  a person does get  a                 
  restraining  order,  and  that  person  that is  subject  to                 
  immediate  arrest.    She  said  she  believes  this  is  an                 
  exception  of  an  old procedure  that  protects  the people                 
  involved; and the system  as it works right now,  appears to                 
  be working fine.                                                             
                                                                               
  Number 583                                                                   
                                                                               
  REPRESENTATIVE  NORDLUND  asked  about   a  situation  where                 
  somebody was falsely reported and had to spend time in jail.                 
  Is there any possibility that in a situation like that, that                 
  person could have  an immediate hearing?   Could you  arrest                 
  them first, get them away from the person they are allegedly                 
  threatening, and get them to a hearing right away, as to not                 
  violate their freedoms?                                                      
                                                                               
  Number 591                                                                   
                                                                               
  DEAN  GUANELI  said he  thought  Ms.  Brink was  correct  in                 
  asserting  the  court system  is  pretty good  about getting                 
  hearings scheduled as quickly as possible.  Whether that  is                 
  at 8 a.m.  in the morning, or at 1:30 p.m. in the afternoon,                 
  he was not  sure.  It depends on the location, but certainly                 
  within 24 hours, that person is going to get before a judge.                 
                                                                               
  Mr. Guaneli referred  to a situation where someone  calls in                 
  and  falsely accuses a person  of violating a condition, and                 
  said he  is not certain what  could be done  about that, but                 
  the  standards under this  bill are that  the police officer                 
  has reasonable grounds to believe that a person had violated                 
  conditions, and if that is an anonymous phone call, he would                 
  question whether or not that is reasonable grounds.  We rely                 
  on police officers to make those  kinds of judgments all the                 
  time.  In other words, when  they think they have reasonable                 
  grounds for believing that an offense has occurred, we allow                 
  them to make an  arrest in a large number  of circumstances.                 
  This  does not  change that.   We have  to rely on  the good                 
  faith of police officers to exercise some discretion.                        
                                                                               
  CHAIRMAN  PORTER  asked  Mr.  Guaneli  to  discuss  HB  525,                 
  relating to character evidence in criminal trials.                           
                                                                               
  Number 611                                                                   
                                                                               
  DEAN GUANELI  referred to  HB 525 and  said this may  be the                 
  most significant of  the bills.   It amends  Alaska Rule  of                 
  Evidence 404 in a  way that allows additional evidence  of a                 
  sexual offender's background to be presented to the jury  in                 
  a  case of  sexual assault.   Generally, under  the Alaska's                 
  Rules  of  Evidence, any  relevant  evidence  is admissable,                 
  anything that goes to prove a fact, or to disprove a fact is                 
  considered  admissable.    There  are  some exceptions,  and                 
  Evidence  Rule 404, Subsection B, contains a number of those                 
  exceptions.  In  particular, if  someone has committed  some                 
  crimes in the past,  or committed some other "bad  acts", it                 
  is generally not admissable to show that the person is a bad                 
  person; to show that the person has  a  propensity to commit                 
  offenses.    There are  some  exceptions to  that exception,                 
  however.  I  in the past,  this legislature has ingrafted  a                 
  number  of those exceptions,  for example,  allow additional                 
  evidence of someone's prior offenses  for child sexual abuse                 
  in a later case of child sexual abuse.  That change was made                 
  in 1988.   In 1991,  there were additional  changes made  to                 
  this rule,  because the  legislature believed,  legitimately                 
  that the courts  were not  interpreting the rule  correctly.                 
  They were keeping out  too much evidence that was,  not only                 
  relevant, but important  to a  jury's consideration, and  so                 
  additional changes  of this  rule were  made in  1991.   Mr.                 
  Guaneli said thinks  that the judges, in  many respects, are                 
  still not interpreting the rule correctly.  So what is being                 
  proposed is a  fairly narrow  exception rule to  404 B  that                 
  says, "If in  a trial of a sexual assault,  you are claiming                 
  that the victim  consented, then we  are going to allow  the                 
  jury to hear evidence that, in  the past, you have committed                 
  other acts  of  sexual assault."   In  other words,  "other"                 
  either you  have been  convicted  of sexual  assault in  the                 
  past, or there  have been other  women who have claimed  you                 
  have sexually assaulted them.   It used to be the  case that                 
  many people would  defend against charges of  sexual assault                 
  by  saying simply  that it  did  not happen.   Now  with new                 
  techniques of forensic evidence, DNA analysis, and the like,                 
  we  can prove  in many  instances, that  it in  fact  it did                 
  happen, and so all of a sudden they have got to switch gears                 
  in  their defense, and  they say  that the  woman consented.                 
  Most juries would find it, not only relevant, but  important                 
  to know that  two or three or  four times in the  past, this                 
  person has  been convicted  of other  sexual assaults,  that                 
  other women had claimed that he  has also sexually assaulted                 
  them.  That would aid the jury in determining whether or not                 
  a consent did  occur.  This is  a fairly narrow change.   It                 
  appears on page three,  lines 23 through  26.  In crimes  of                 
  sexual assault where  the defendant says there  was consent,                 
  the  jury  is  allowed  to  hear  evidence of  prior  sexual                 
  assaults by that person.                                                     
                                                                               
  Mr. GUANELI  said some of  the introductory material  to the                 
  bill  gives  an  example  of  a  fairly  egregious  case  in                 
  Anchorage, the case of Leo Hoffman.  It is described on page                 
  four at  the very  beginning of  this packet  that has  been                 
  provided  to  the  committee  members,  of  someone  who  is                 
  essentially a serial rapist, who had been convicted of rapes                 
  in California, came up to  Alaska, continued to rape  women,                 
  claimed  consent,  actually  got  acquitted  in  one  trial,                 
  convicted of  a slightly  related offense,  was released  on                 
  bail, raped additional women, and  his pattern of conduct is                 
  something the jury needs to  know about in order for a  jury                 
  to  accurately assess a claim that  the woman consented, the                 
  jury needs  to know  that there were  previous instances  of                 
  sexual assault.  So this is a fairly narrow directive change                 
  to the Rules  of Evidence to  allow in this specific  narrow                 
  evidence.                                                                    
                                                                               
  Number 689                                                                   
                                                                               
  REPRESENTATIVE NORDLUND noted that in the front cover of the                 
  materials, it says "HB 525, (Minerals?) of evidence  of rape                 
  victims aren't put  on trial."  He  asked if we have  a rape                 
  shield law in Alaska.                                                        
                                                                               
  MR. GUANELI said that a rape shield law does exist.                          
                                                                               
  REPRESENTATIVE  NORDLUND indicated  he  does understand  the                 
  intent  of the bill and still needs  to learn more about it.                 
  He said he doesn't  see anything in this bill  that prevents                 
  rape victims from being  put on trial.  They  already cannot                 
  be put on trial under most circumstances.                                    
                                                                               
  MR. GUANELI  said in many  instances, there is  nothing that                 
  will prevent a defendant from  cross examining a victim  and                 
  through  questions or through  other evidence  claiming that                 
  there  was   consent.     Evidence  that   the  victim   was                 
  intoxicated, or had  used drugs,  or had been  hitch-hiking,                 
  or, for some other reason, had consented.  That, in a sense,                 
  is putting the victim  on trial, but there is not really any                 
  way to  get around  that consistent  with the  confrontation                 
  clause  of  the  constitution  or  the  right  to  effective                 
  representation.    He  said  what  the  does  is  makes  the                 
  proceeding  a little more  fair.  You  learn everything that                 
  the victim did,  and all of the "bad things" the victim did,                 
  all the unsavory  things the victim did.  On  the other hand                 
  you learn an  awful lot  more about what  the defendant  has                 
  done in the  past, and it allows  a jury to really  hear the                 
  full story, and not just half the story.                                     
                                                                               
  REPRESENTATIVE NORDLUND said that  basically puts a chilling                 
  effect  on  the desire  of the  accused  to claim  there was                 
  consent.                                                                     
                                                                               
  MR.  GUANELI said if you  were going to  claim that, then we                 
  are going  to let  in evidence of,  that in the  past, there                 
  have been other rapes that you have committed.                               
                                                                               
  Number 806                                                                   
                                                                               
  REPRESENTATIVE  NORDLUND  asked if  it  was true  that there                 
  could be previous  sexual assaults  that would detract  from                 
  the credibility of the accused, but for the particular crime                 
  for which  they are accused,  there could have  been consent                 
  also.                                                                        
                                                                               
  MR. GUANELI agreed that there is no question about that, and                 
  the way this  would work  is that a  judge would  ordinarily                 
  hold a hearing outside  the presence of the jury,  and would                 
  hear the evidence  that the prosecution wants  to present of                 
  those other rapes, and the judge would  make a determination                 
  whether  the  facts were  similar  enough, whether  there is                 
  enough relation  to this current offense that the jury ought                 
  to hear that  evidence.   If the judge  determines that  the                 
  prior rape was 20 years ago, it involved completely separate                 
  circumstances, and that  it would  be more prejudicial  than                 
  helpful to the jury,  or it would waste time,  the judge can                 
  disallow it in that particular case.  If it would be helpful                 
  to the jury, the judge would allow that in.                                  
                                                                               
  MR. GUANELI said  there are lots  of rules of evidence  that                 
  govern  information   that  can   come   in  under   certain                 
  circumstances, and not in others.  One of the most common is                 
  that if a  defendant takes the  stand and testifies, and  he                 
  is, in essence, putting his credibility  in issue.  Then the                 
  prosecution can impeach that defendant  by, evidence that in                 
  the past, that  person has  committed crimes of  dishonesty.                 
  In other words, that is a dishonest person.  Prior instances                 
  of perjury,  prior instances of  theft, that sort  of thing.                 
  That is  a standards rule  that has been the  rule in Alaska                 
  and all of the states for  a long time.  You could make  the                 
  same argument that puts  a chilling affect on a  defendant's                 
  right to  testify.  In essence, a trial  is a search for the                 
  truth, and  if the  defendant is  getting on  the stand  and                 
  putting  his credibility  in  issue, then  the jury  has the                 
  right and  the court has a rule that the jury has a right to                 
  hear that this person might not be the most honest person in                 
  the world.  Mr. Guaneli said this is along those same lines,                 
  and this  is along those same lines, it  is the same kind of                 
  concept, only to the issue of consent in a rape case.  It is                 
  a fairly narrow exception.                                                   
                                                                               
  Number 753                                                                   
                                                                               
  BARBARA BRINK, testifying via teleconference from Anchorage,                 
  said  she are deeply concerned  about this radical change in                 
  evidentiary rules, by allowing what is called the propensity                 
  evidence in  order to convict  someone of a  crime.  We  are                 
  directly assessing the constitutional right to due  process.                 
  This (inaudible) the criminal justice  system and the Alaska                 
  system, that people charged with a  crime are presumed to be                 
  innocent, and they shall be convicted only upon proof beyond                 
  reasonable doubt they committed  this particular crime  with                 
  which they are charged and on trial for before the jury.                     
  Normally, proving somone's propensity for his (inaudible) to                 
  commit  crimes is  not admissable  because we  only want  to                 
  convict people who actually did  the crime.  We do not  want                 
  the jury convicting  someone because  he has done  something                 
  like it  in the  past, or  because they  think he  is a  bad                 
  person, or because they think he  is the kind of person  who                 
  might do this.  We want to convince someone if  he did.  And                 
  for that  reason,  this  type  of evidence  is  not  usually                 
  admitted.  Innocent people can get  convicted this way.  Ms.                 
  Brink gave an illustration of the case of Leo Hoffman.   Leo                 
  Hoffman was acquitted  because there was  insufficient proof                 
  that he had committed rape in this particular occasion.  The                 
  (inaudible) says he  was convicted of  related crimes.   The                 
  evidence shows that Mr.  Hoffman, and the woman involved  in                 
  this  case, (inaudible)  witness, had  been consuming  drugs                 
  together for a great  part of the evening.   Mr. Hoffman was                 
  convicted of the drug  charge.  Apparently the jury  did not                 
  feel  that  she was  a credible  witness,  and they  did not                 
  believe that there was (inaudible)  in this particular case.                 
  If in fact,  Mr. Hoffman had a pattern of doing this kind of                 
  crime in  the past,  that was  already admissable.   If  his                 
  prior convictions had been for anything like your particular                 
  charge for which he was on trial, the evidence rules already                 
  permits that  type of evidence  to be admissable.   Clearly,                 
  whatever Mr. Hoffman's prior convictions were, they were not                 
  similar  enough  in  this    particular  case  to  have  any                 
  relevance  whatsoever.   That is  why  the evidence  was not                 
  admitted.  Additionally,  the law  is drafted very  broadly.                 
  There is  no limit on how  old the information must  be, how                 
  verified the information must be.  There  is no limit on how                 
  certain the information must be.  Although it is promoted in                 
  the  (inaudible), it  would be  very time consuming  to have                 
  (inaudible),  where  people  from  no (inaudible)  crime  or                 
  certainty are going to be compelled to come in, and tell the                 
  judge what  they would  tell the  jury, and  then the  judge                 
  would  have  to  determine  (inaudible).   She  agreed  with                 
  Representative Nordlund,  saying this bill  does not  really                 
  address that.  It does not provide any additional protection                 
  for victims, and it  does not provide a safeguard  that will                 
  reduce  the (inaudible).   She believes  the rules,  as they                 
  stand  today are  a fair accommodation,  and help  us ensure                 
  that only the guilty are convicted.                                          
                                                                               
                                                                               
  CHAIRMAN PORTER asked if Cindy Smith wished to testify.                      
                                                                               
  Number 806                                                                   
                                                                               
  CINDY  SMITH,   Executive  Director,  Network   on  Domestic                 
  Violence  and  Sexual Assault,  described  the network  as a                 
  statewide coalition of nonprofit programs that serve victims                 
  and their  families.   She said she  wanted to  make a  very                 
  short comment  on the bill that was heard prior.  The origin                 
  of  HB 524 was from a conference  on the National Council of                 
  juvenile  family  court judges  last  year that  the network                 
  attended along with a number of judges.  This specific issue                 
  about violations of conditions and release was brought up by                 
  the judges as  a pressing  problem that they  would like  to                 
  have seen solved.                                                            
                                                                               
  She said they  obviously disagree  with the public  defender                 
  about the speed and ease with which a person  can be charged                 
  and held on a violation of bail conditions.  A bench warrant                 
  process is not  a quick process, particularly in  a domestic                 
  violence situation which is very  volatile, and where people                 
  come back.   It is ironic, if someone is  arrested, there is                 
  less  protection  for the  victim  currently, that  there is                 
  under civil law.   Not all  victims get restraining  orders.                 
  They think if you get somebody arrested, that ought to cover                 
  the situation,  and there  are officers  that are  literally                 
  unable to respond  right now.   They very much support  that                 
  bill, and she repeated that the origin  of it was actually a                 
  request from judges about something that would help make the                 
  process consistent in domestic violence.                                     
                                                                               
  MS. SMITH referred to  the change in the Rules  of Evidence,                 
  she would not try to speak  to the paper that the Department                 
  of Law wrote in terms of what it says.  She said the consent                 
  defense has become increasingly common, as Mr. Guaneli said,                 
  as they have gotten more sophisticated in collected physical                 
  evidence through rape exams, and through genetic testing and                 
  things like  that.    Defendants  are  more  likely  to  use                 
  consent,  both because  of that  and because  it  presents a                 
  specific means of a piercing rape shield.  This idea we have                 
  that  we  solve   the  problem   of  not  putting   victims'                 
  backgrounds at  issue with trial by passing  the rape shield                 
  law is only partially  correct.  It certainly has  prevented                 
  the most egregious  cases of going  back years and years  or                 
  bringing in completely outrageous information, but still and                 
  routinely, defense attorneys particularly in the claiming of                 
  consent, are able  to go back into the  victims' background,                 
  put her  in the  position of  being the  defendant, put  her                 
  behavior at  issue, as if consent  had nothing to do  with a                 
  two party  action.  What is being said  in the bill, is that                 
  when  you  claim consent,  you  are talking  both  about the                 
  victim's behavior, and  about your own.   You are, in  fact,                 
  putting  your  own  behavior  at   issue,  and  under  those                 
  circumstances, it  is appropriate  to talk  about your  past                 
  behavior.   The  claim  of consent  in  fact, puts  victim's                 
  backgrounds  and immediate  actions at  issue.   We  feel it                 
  should be at  least the same  burden on the defendant.   Ms.                 
  Smith said her  organization supports the bill and urges the                 
  committees support.  She pointed out  that it is not exactly                 
  a radical  change in the law.  A  similar change was made in                 
  children's cases in  1988, so  judges do keep  a very  tight                 
  reign  on  what  goes into  court  in  terms  of potentially                 
  prejudicial  information.   They  will  still be  doing that                 
  weighing test.   But it gives victims at least  a chance, in                 
  cases of serial rape, to be able to talk about not just what                 
  they did that  night, or the  preceding three weeks, or  the                 
  last month, but also what the defendant has been doing.  She                 
  stated the network does support the bill.                                    
                                                                               
  Number 862                                                                   
                                                                               
  The next person to testify was Jayne Andreen.                                
                                                                               
  JAYNE  ANDREEN,  Executive  Director,  Council  on  Domestic                 
  Violence and Sexual Assault, expressed the council's support                 
  of all four of these bills, but particularly HB 524 and 525.                 
  She indicated she would like to add a few comments regarding                 
  HB 524.   The example that  the Public Defender provides  of                 
  the  false allegations  is something that  it seems  like in                 
  domestic violence cases, and sexual  assault cases, there is                 
  a lot  more concern on  the public's perception  about false                 
  allegations, but the  reality, as  studies show,  it is  the                 
  same  as  other  crimes, it  is  two percent.    One  of the                 
  problems  from the victim's standpoint that HB 524 is trying                 
  to address is  these violations take  place and the  problem                 
  times  are  from  11:00  p.m.  to  4:00  a.m.    Judges  and                 
  magistrates  do not want  to be woken up  at that time, come                 
  down  to  the court  and do  a  standard type  of procedure.                 
  Quite often they  end up waiting  until the morning, and  in                 
  the meantime, what the victim has to do if she wants to feel                 
  safe,  is pack  herself  up and  pack the  kids  up, and  go                 
  someplace else, go to a friend's,  go to a shelter, go to  a                 
  safe home.   This bill  addresses that  so there  can be  an                 
  immediate arrest if  the law enforcement officer  feels like                 
  there is just cause for  that, then he can be  arraigned; it                 
  can be looked at the next morning or afternoon.                              
                                                                               
  JAYNE ANDREEN referred to HB  525, "Character Evidence," and                 
  said she  believes there  is a  public perception  that even                 
  though we hear the  statement, "Rape is not a  crime of sex.                 
  It is a  crime of violence where  sex is used to  have power                 
  and control over someone."  Even though we hear those words,                 
  and we understand it, when it gets  right down to it, people                 
  think of it  as sex.  It is referred to  as a sex crime.  It                 
  is not  a sex crime, it is a violent crime.  So when it goes                 
  to court, if there is  a consent defense, the victim  is the                 
  one who has to answer to  why she was drinking, why she  was                 
  in that  place, why  she was  there.   Ms. Andreen  said she                 
  doesn't  have  hard statistics  on  this, but  she  has been                 
  looking at statistics for Alaska, and she estimates  that of                 
  all  sexual  assaults  that occur,  the  conviction  rate is                 
  probably between three and five percent in this state.                       
                                                                               
  TAPE 94-55, SIDE B                                                           
  Number 001                                                                   
                                                                               
  JAYNE ANDREEN (continued)  Anything  we can do that balances                 
  out  that  system that  lets victims  take advantage  of the                 
  system and feel like they are  being heard without having to                 
  be  on trial themselves.   It will  help end  these types of                 
  crimes.                                                                      
                                                                               
                                                                               
  Number 015                                                                   
                                                                               
  REPRESENTATIVE  NORDLUND   said  in  child   sexual  assault                 
  situations there is  an established pattern where  you could                 
  basically  convict  the  individual  based  on a  series  of                 
  assaults.  Is that the loophole that when you're getting rid                 
  of language here to  show a common scheme or plan?   Is that                 
  the law that you are trying to get rid of the loophole in?                   
                                                                               
  Number 034                                                                   
                                                                               
  MR. GUANELI said  that is a  limitation on the current  rule                 
  governing admissability in child sexual abuse cases.  It was                 
  felt that was too restrictive, only  to show a common scheme                 
  or plan, and that there are other reasons why evidence ought                 
  to be admissable, and some of them are shown on lines ten to                 
  twelve, "motive, opportunity,  intent," etc.   We felt  that                 
  limiting language was too tight and ought to be deleted.                     
                                                                               
  Number 040                                                                   
                                                                               
  REPRESENTATIVE NORDLUND referred to the words that are being                 
  deleted in terms of the time, "not too remote in time",  and                 
  asked how has  that been interpreted  by the courts so  far?                 
  He asked if ten years reasonable?                                            
                                                                               
  Number 063                                                                   
                                                                               
  MR.  GUANELI  said he  thought the  problem  was that  it is                 
  unclear how that ought to be interpreted, there were varying                 
  interpretations and it was  felt that putting in a  set time                 
  frame was  more appropriate than  leaving it  quite so  open                 
  ended as that.                                                               
                                                                               
  Number 073                                                                   
                                                                               
  MR. GUANELI then  discussed HB  527 which extends  probation                 
  for certain crimes.  He said  the bill extends the probation                 
  for certain crimes extends probation  for sex offenders from                 
  five to ten years.   Under current Alaska law,  a person can                 
  only be put on probation for  five years, and that is  based                 
  partially  on experience which  has shown that  after two or                 
  three years, if you have not had your probation revoked then                 
  you are  pretty much going to succeed in your probation, and                 
  that certainly  five years  would be  outside.   If you  are                 
  going to violate probation, it is usually going to happen in                 
  the first  couple or  three years.   That  is true for  most                 
  offenses.  The one exception  is sex offenses.  Particularly                 
  child sex offenses occur over a long period  of time.  There                 
  is a long  period of activity  that might not  appear to  be                 
  criminal activity;  it is  grooming activity, and  offenders                 
  kind of work their way into that particular criminal conduct                 
  over a long, long period of time.  It takes a long period of                 
  time  to establish a  certain relationship  with a  child, a                 
  relationship of  trust that will allow them  to commit those                 
  offenses.   In  addition,  sex offenders,  unlike  a lot  of                 
  offenders, really  can control their  conduct.  They  can be                 
  deterred, and one of  the primary ways of  deterring someone                 
  is by  having them on probation.   In other words  by having                 
  them know that  during this period  of time if they  violate                 
  their probation, they can be put back  in jail.  It was felt                 
  that as a result of the  notion that sex offenses occur over                 
  a  long  period of  time,  and  they can  be  deterred, that                 
  extending the allowable range of probation from  five to ten                 
  years  does  a couple  of  things.   First,  if  the initial                 
  victims were very young,  putting a person on probation  for                 
  ten years allows  them to  grow up during  a period of  time                 
  when  that  person  is supervised  and  is  still under  the                 
  authority of the  court.  Because  they can be deterred,  it                 
  makes  it less likely that they will commit further offenses                 
  for the period that  they are on probation.   They know that                 
  there  is  this hammer  hanging over  their  head.   If they                 
  violate their probation they can be put back in jail.                        
                                                                               
  MR. GUANELI  said that for whatever reason, the treatment of                 
  sex offenders is an "iffy" thing.  He sat on the  Sentencing                 
  Commission for two and a half years.  The testimony we heard                 
  is  that  rehabilitation  is  not  very  effective  for  sex                 
  offenses.   The programs  we have, although  it is laudable,                 
  there is not a real high success rate, and so we have people                 
  who usually serve  three to four  years in prison, they  are                 
  released, and they  are back  into society and  they can  be                 
  grooming children again in  fairly short order.  There  is a                 
  need in certain cases,  and this does not require  that this                 
  long of a probation  period be imposed, but there is  a need                 
  for a longer period of probation.   The way that the bill is                 
  designed  to not  impact Corrections  significantly  is that                 
  there is a provision in the bill that says if a  person goes                 
  for a period of five years without committing a violation of                 
  probation, that  instead of having  active probation,  where                 
  they go  in  once a  month to  see a  probation officer,  it                 
  becomes unsupervised probation.   In  other words, they  can                 
  perhaps submit a monthly report to the probation officer, it                 
  does not  have to  take up a  probation officer's time.   In                 
  other  words,  there is  no  specific fiscal  impact  on the                 
  Department of Corrections,  yet there  is still that  hammer                 
  hanging  over the person's head if a violation of conditions                 
  occur, there can  be a probation revocation  petition filed,                 
  and the person  will come back before the courts.  As far as                 
  the  sex offender is  concerned, there is  still this hammer                 
  hanging over them.  As far  as the Department of Corrections                 
  is concerned, they  do not  have to have  another person  on                 
  their active  caseload for  probation.   It was  designed to                 
  work  that way  so there  would be a  minimal impact  on the                 
  Department in terms of their budget.                                         
                                                                               
  Number 181                                                                   
                                                                               
  REPRESENTATIVE NORDLUND  noted  that there  was nobody  from                 
  Corrections present.  The fiscal note from Corrections would                 
  suggest that there  is not a problem or a need for the bill,                 
  because it is  zero.  He said  he would think that  if there                 
  were some  situations in  which somebody  would violate  the                 
  conditions  of their probation, and be  thrown back in jail,                 
  that there would be some fiscal impact.                                      
                                                                               
  Number 193                                                                   
                                                                               
  MR. GUANELI suggested  that probably for every  sex offender                 
  who is put  back in  jail because their  probation has  been                 
  extended, we may have deterred another sex offender, who, if                 
  this  bill  had not  been  in  effect, would  have  been off                 
  probation and charged with a new offense.                                    
                                                                               
  CHAIRMAN PORTER said if  a sex offender is out  and violates                 
  probation, it is probably because they caught him very close                 
  to committing another offense.  Having  put him away for the                 
  violation  as opposed to  the offense,  saved the  trial, it                 
  saved impact  on Corrections,  the courts,  the police,  and                 
  everybody else.                                                              
                                                                               
  Number 220                                                                   
                                                                               
  REPRESENTATIVE  NORDLUND said that could be so, but it would                 
  be nice to see that in the fiscal note.  He said the bill is                 
  a good bill, but noted he  is concerned about the number  of                 
  crime bills that have  been passed this year and  the fiscal                 
  impacts are really adding up.  He  said in the House budget,                 
  there is $5 million for all new legislation.  Representative                 
  referred to the comments  of the Chief Justice to  the Joint                 
  Session the other day, and said it  is one thing to pass all                 
  the  bills,  but it  is another  thing  to actually  put the                 
  machinery in place;  to enforce  and prosecute, and  provide                 
  correctional space  for the  new offenders.   Representative                 
  Nordlund said he  is becoming more and  more concerned about                 
  the fiscal impacts of the legislation.                                       
                                                                               
  Number 233                                                                   
                                                                               
  REPRESENTATIVE JAMES had  a comment regarding new  bills and                 
  fiscal notes.  She  asked which comes first, the  chicken or                 
  the  egg?   She said  would like  to  spend some  time going                 
  through Alaska's laws  and taking off  the laws that are  on                 
  the books that have fiscal impacts and are not being funded.                 
  If there are good bills on the books, they probably would be                 
  funded.  She  indicated that she  thinks that the good  laws                 
  should be passed.                                                            
                                                                               
  Number 246                                                                   
                                                                               
  CHAIRMAN  PORTER responded to that the issue is a legitimate                 
  issue.  He said there have been several bills that have come                 
  through the Judiciary Committee which  have not had negative                 
  fiscal notes, that have certainly been of  assistance to the                 
  Department of  Law and the Court System  which have impacted                 
  their case load positively.  He referred to those who are in                 
  the  agencies  trying to  do their  jobs  and said  what the                 
  legislature  is providing is the tools to do their jobs.  He                 
  said the legislation perhaps helps  in deterring people from                 
  actually committing  these crimes.   The impact  of that  is                 
  going to be a reduction of problems  for these agencies.  He                 
  said we  don't take  money away  from them  because we  have                 
  positively affected them.   Chairman Porter said  he doesn't                 
  think that  there is an automatic reduction  of ability when                 
  new  laws   are  passed,  because   the  legislature   don't                 
  appropriate  $1  million  to  go  with  it.    There  is  an                 
  enhancement of ability these agencies do  what they can with                 
  what they have.                                                              
                                                                               
  Number 284                                                                   
                                                                               
  REPRESENTATIVE NORDLUND  said his concern  is the impression                 
  that the public will have that by passing these laws, Alaska                 
  is going to  be a safer place  to live.   In some cases,  it                 
  will be, but if the  legislature doesn't provide the funding                 
  to the  agencies to enforce the laws, it is a bit of a sham.                 
  No single individual is responsible for this, but before the                 
  session  is over,  he hopes  the  majorities of  both bodies                 
  would sit down and figure out what to do.  The agencies will                 
  probably end up  figuring out which  of these laws they  are                 
  really going to  be able to enforce,  and in some case,  the                 
  protection the public feels they are going to get from these                 
  just will  not happen because the funding  won't be provided                 
  to them.                                                                     
                                                                               
  Number 303                                                                   
                                                                               
  CHAIRMAN  PORTER indicated  he was  a  member of  the budget                 
  committees  for  the Court  System,  Public Safety,  and the                 
  Department of Law, and said those agencies fared better than                 
  others.  He  indicated the Court  System had a $17  thousand                 
  one time only last  year expenditure, and if it was  not for                 
  that,  they would be funded at  the same level as last year.                 
  He  said  he doesn't  think  there  is anybody  else  who is                 
  getting that treatment.                                                      
                                                                               
  Number 316                                                                   
                                                                               
  REPRESENTATIVE JAMES referred  to fiscal notes and  said she                 
  has been extremely distressed about the way the fiscal notes                 
  are calculated.  A  department or an agency can  be directed                 
  to the most effective use of those funds.                                    
                                                                               
  REPRESENTATIVE JAMES said when you add  more and more things                 
  for people to do, there is going to be some kind of a fiscal                 
  impact, but a lot  of it just falls in the cracks  and a lot                 
  of it gets done with the same  amount of money.  To say that                 
  because the fiscal  notes are so large  that the legislature                 
  should not consider  passing legislation, is a  weak excuse.                 
  It is valid to the public.                                                   
                                                                               
  Number 341                                                                   
                                                                               
  CINDY  SMITH  said   she  spoke   with  the  Department   of                 
  Corrections about their fiscal note, and  the reason it is a                 
  zero note is because there currently have a five year period                 
  of probation.   So within the time frame of the fiscal note,                 
  if the  bill is  passed tomorrow,  it will  not affect  them                 
  within the time frame they are  required to report, to begin                 
  with.  Secondly, they view it as a tool as prisoners are, in                 
  fact, being  furloughed, and  out on  parole.   The pressure                 
  within the correction system increases, as  a tool, they can                 
  use to continue to monitor.  She said her impression is they                 
  are in  support of the  idea, but  the actual answer  to the                 
  fiscal note question is within five  years, it is a standard                 
  period of probation, so it does not have an impact that they                 
  would find reportable within the context of a fiscal note.                   
                                                                               
  Number 360                                                                   
                                                                               
  REPRESENTATIVE NORDLUND noted  that on  the fiscal note,  it                 
  says   because   the  extended   period   of   probation  is                 
  unsupervised, no fiscal impact is expected.  I would suggest                 
  because of this bill, there is a  need for this bill in that                 
  some cases there will be  supervised probation over the five                 
  year period, so that is a good  rationale, but they ought to                 
  change what it says on the note.                                             
                                                                               
  CHAIRMAN  PORTER  asked  Mr.  Guaneli  to  discuss  HB  528,                 
  Preemptory challenge of jurors.                                              
                                                                               
  Number 366                                                                   
  MR. GUANELI said HB 528 would correct an anomalous situation                 
  where  in  not only  in sexual  assault  trials, but  in all                 
  felony trials, the defense has an opportunity  to exercise a                 
  lot  more  control  over  who  sits  on the  jury  than  the                 
  prosecution  does.   In  jury  selection, there  are certain                 
  rules of the court  that are spelled out in some detail that                 
  will excuse jurors for certain specific  reasons.  They have                 
  heard  too much about  the case and they  cannot be fair, or                 
  they have a  certain criminal record.   He said  there is  a                 
  whole list of  reasons why  you exclude jurors.   They  call                 
  them challenges for cause, there  are reasons for cause that                 
  you excuse a juror.  Mr. Guaneli said then each side  in the                 
  case has  an opportunity to also excuse  specific jurors for                 
  whatever reason they want.  There  are rules that you cannot                 
  exclude people on  the basis  of race, etc.,  but for  other                 
  reasons, you do not have to give reasons, you'd just say you                 
  would  like juror  number  three excused.    He referred  to                 
  defendants and said they  may want to excuse all  the people                 
  who  have  been victims  of crime  in  the last  five years.                 
  Through questioning,  you find out  about those and  you ask                 
  that those people be  excused.  They will say  that they can                 
  be fair jurors, and they probably can, but defense might not                 
  want to run that risk.                                                       
                                                                               
  MR. GUANELI said  from the prosecution standpoint,  he might                 
  not want someone whose brother had been previously convicted                 
  in the  last year of something, just because we may not want                 
  to run the  risk of that  person not being completely  fair.                 
  In exercising  those challenges, preemptory  challenges, the                 
  defense in  a  felony case  gets to  do that  ten times,  to                 
  excuse ten people.   The prosecution only gets six  of those                 
  challenges or can only  excuse six people.  That  difference                 
  allows the defense, in a large number of cases, to have much                 
  more say over the twelve people who are going to be deciding                 
  that case.  What  is kind of strange is that  in misdemeanor                 
  cases,  both sides have an equal number of those challenges.                 
  They each have three.  In felony cases, the defense has  ten                 
  and  the prosecution  has  six, and  this  bill proposes  to                 
  equalize that  number  of challenges,  and to  speed up  the                 
  jury's selection process.  The proposal is to equalize  them                 
  where  each side has  six.  This rule  came from the federal                 
  court  rules.   In territorial  days, Alaska  was under  the                 
  federal court  system, and  when the  change-over came,  the                 
  Alaska  Supreme  Court  just adopted  the  federal  rules of                 
  procedure.  In the federal rules for misdemeanor cases, each                 
  side has three challenges.                                                   
                                                                               
  Mr. Guaneli referred to death  penalty cases in the  federal                 
  system and said each side has an equal number of challenges,                 
  they each get 20 challenges.  But for felony cases, for some                 
  reason, the defense  gets ten and the  prosecution gets six.                 
  We  propose to equalize  that at  six each.   In  the Senate                 
  State  Affairs  Committee there  was  some discussion  as to                 
  whether it  should be six  each, or eight  each.  In  Senate                 
  Judiciary Committee  Ms.  Brink, testifying  for the  Public                 
  Defender Agency, indicated  she did not have  a problem with                 
  it being equal  as long as each  side got ten.   Mr. Guaneli                 
  said  he  would  not   have  a  problem  with  that.     The                 
  equalization  has  been  recommended  by  the  American  Bar                 
  Association, and the proposal makes a lot of sense and makes                 
  the process a  lot more fair.   That is  the proposal.   The                 
  number is for you to decide.                                                 
                                                                               
  BRANT MCGEE, Director, Office of Public Advocacy,  testified                 
  via teleconference from Anchorage.  He said they are opposed                 
  to this  HB  528 for  a number  of reasons.    He said  they                 
  believe it  is based on  two false  premises.   One is  that                 
  there is an uneven  playing field now.   The second is  that                 
  this proposal will save time, and therefore money.  Both are                 
  untrue.   This proposal was  examined by the  Criminal Rules                 
  Committee in 1986.   He noted  the committee is composed  of                 
  defense attorneys,  prosecutors, and judges.   The  proposal                 
  was  unanimously rejected in 1986.  Their rationale for such                 
  rejection is the  change in  a letter from  the chairman  of                 
  that  committee.     Further,  the  memorandum  from   Judge                 
  (Mihalsky?). (inaudible) who also  argued for the  retention                 
  of the current rule.   It is a rule that  served the federal                 
  system for  many decades  and it  served  Alaska well  since                 
  statehood.                                                                   
                                                                               
  MR.  MCGEE noted the reason the  defense has more preemptory                 
  challenges  is plain and  clear to anybody  who watches jury                 
  selection in a felony trial.  That is  that many more jurors                 
  are   more  prosecution  oriented   than  they  are  defense                 
  oriented.  And if you only have to look at your own reaction                 
  to public comments  regarding crime, you  will know this  is                 
  true.   It is  certainly this  legislatures perception  that                 
  more people are interested in harsher and more comprehensive                 
  prosecution of wrong doers.  Then there are people who think                 
  there  ought not to  be such efforts  made.  Mr.  McGee said                 
  that is reflected  in jury  panels and it  always has  been.                 
  Frankly,  the  presumption  of innocence  is  an  artificial                 
  contract that we ask  jurors to keep in mind  throughout the                 
  course of  the  trial.   But  the presumption  of  innocence                 
  certainly does not apply and is not used by jurors when they                 
  first walk into  the court room.   Mr. McGee said in  his 16                 
  year career and more than 50 jury trials, He has never heard                 
  a  prosecutor  or  judge  complain   about  the  numbers  of                 
  preemptory challenges and  the reason  is the defense  needs                 
  more  preemptory challenges in order to assure a fair panel.                 
  Mr. McGee  said  he  would prefer  to  see  more  preemptory                 
  challenges for the prosecution.  He noted he does not object                 
  to making it ten  and ten, because current practice  is that                 
  typically, defense  attorneys exercise  about twice as  many                 
  preemptory challenges as prosecutors.  The reason is they do                 
  not have to, because members of  the panel are generally far                 
  more  acceptable  to the  prosecution than  they are  to the                 
  defense.                                                                     
                                                                               
  Number 514                                                                   
                                                                               
  BARBARA BRINK said she  would like to emphasize on  the time                 
  and  cost  saving  measures.    She  referred  to  the   two                 
  preemptory challenges exercised in the courts in selecting a                 
  jury and  said it goes  by very  quickly.  The  parties have                 
  already had an opportunity to talk to the jurors about their                 
  own individual  life experiences,  to analyze  how they  are                 
  going to affect their  ability to sit on a  particular case.                 
  Every one of us  probably has a type of case  that we should                 
  not be a juror on.                                                           
                                                                               
  Ms. Brink said Judge  Mihalsky, when he wrote the  letter to                 
  the  Rules  Committee editing  their  change in  the current                 
  practice, also pointed out another  important area, and that                 
  is the perception of fairness.   The preemptory challenge is                 
  a small price  to pay in order to provide  some assurance to                 
  the defendant that he is getting a fair, impartial jury.                     
  REPRESENTATIVE NORDLUND asked Mr. Guaneli to explain what we                 
  are really trying to fix here.   It seems that as long as we                 
  are  going to give the benefit  of the doubt to the accused,                 
  and taking into  consideration that  you are innocent  until                 
  proven guilty,  why not let the defense have more challenges                 
  than the prosecution?                                                        
                                                                               
  Number 583                                                                   
                                                                               
  MR.  GUANELI said  it is  simply a matter  of fairness.   If                 
  perspective jurors come into the  court believing that there                 
  is some reason why  they are there, he doesn't  see anything                 
  wrong with that.  In a  felony case there has to be  a Grand                 
  Jury that has  already determined  that there is  sufficient                 
  evidence to bring  this case to trial.   They know that they                 
  are going to  hear some  evidence.  That  doesn't mean  that                 
  they are biased towards the prosecution, but they know there                 
  is  a reason  why  they are  there.   Mr.  Guaneli said  the                 
  defense has the presumption of innocence but the prosecution                 
  has the  burden of  proof.   The  system is  designed to  be                 
  fairly equally weighted.  He  said currently the process  is                 
  set up to  be fairly evenly matched, but in the selection of                 
  the jury,  it's not.  Evening  up the ability to  select the                 
  jury is fair and makes the system work better.                               
                                                                               
  Number 603                                                                   
                                                                               
  DANIELLA LOPER,  Committee Aid,  House Judiciary  Committee,                 
  asked if they  would like  to talk about  whether this  will                 
  bring Alaska up to  national standards.  She asked  what the                 
  national standard is.                                                        
                                                                               
  Number 614                                                                   
                                                                               
  MR. GUANELI said  the American  Bar Association standard  is                 
  that the number of  preemptory challenges be equal.   He did                 
  not think they  set a specific number.   They allow that for                 
  every  state,  but that  there  be  a quality  for  the jury                 
  process.   There was a study some  years ago, and most other                 
  states are equal.  He thought  there were some exceptions in                 
  death  penalty  cases where  some  states allow  the defense                 
  additional challenges in death penalty cases.                                
                                                                               
  Number 618                                                                   
                                                                               
  REPRESENTATIVE  NORDLUND  suggested   in  the  interest   of                 
  compromise, he would like to move a conceptual amendment.                    
                                                                               
  Number 628                                                                   
                                                                               
  CHAIRMAN PORTER said they  would have to wait for  the other                 
  two members to  return.   He announced  the committee  would                 
  stand at ease to await the return of the members.                            
                                                                               
  CHAIRMAN PORTER called the committee back to order.                          
                                                                               
  Number 637                                                                   
                                                                               
  REPRESENTATIVE GREEN asked if the number of preemptories was                 
  reflective of the number of defendants.                                      
                                                                               
  Number 650                                                                   
                                                                               
  MR. GUANELI said there is a provision in the court  rule for                 
  a  judge  to  allow  a  defendant additional  challenges  if                 
  fairness requires  that.   If there  are a  large number  of                 
  defendants or if the case has gotten a lot of publicity, but                 
  not  enough  to   move  it  to  another   place,  additional                 
  challenges  are   frequently  granted.     That  becomes   a                 
  discretionary matter for the judge.                                          
                                                                               
  Number 657                                                                   
                                                                               
  CHAIRMAN  PORTER  asked if  that  provision applied  to both                 
  sides or to just the defendant.                                              
                                                                               
  MR. GUANELI said it  is possible for the prosecution  to get                 
  additional challenges, as well as the defendant.                             
                                                                               
  Number 658                                                                   
                                                                               
  REPRESENTATIVE  NORDLUND  suggested  that  they  change  the                 
  balance to eight  and eight.   The amendment would occur  on                 
  page 1, line  9, change "6" to  "8."  First, it  would level                 
  the  playing   field  like  the  American   Bar  Association                 
  suggests.  It does  reduce by two, the amount  of challenges                 
  allowed to the defense, but not  by four as suggested in the                 
  bill which is probably going a too  far.  The overall number                 
  of challenges remains  the same.   He  moved the  amendment.                 
  There being no objection, the amendment passed.                              
                                                                               
  Number 681                                                                   
                                                                               
  REPRESENTATIVE JAMES made  a motion  to pass HB  528 out  of                 
  committee with individual  recommendations and the  attached                 
  fiscal notes.  Hearing no objection, the motion passed.                      
                                                                               
  Number 691                                                                   
                                                                               
  CHAIRMAN PORTER said he would like a motion on HB 527.                       
                                                                               
  REPRESENTATIVE KOTT moved that  HB 527 be passed out  of the                 
  House  Judiciary  Committee with  individual recommendations                 
  and zero fiscal notes.                                                       
                                                                               
  CHAIRMAN PORTER objected.   He said he objected as  he would                 
  like an executive summary of the bill.                                       
                                                                               
  Number 696                                                                   
                                                                               
  MR.  GUANELI  said HB  527  extends  the maximum  period  of                 
  probation  from  five   years  to  ten  years,   for  sexual                 
  offenders.  The reason is that sexual offenders often do not                 
  start re-offending  for more than five years after they have                 
  been caught because  they can be deterred  for an additional                 
  length of time, and because having  them on probation for an                 
  additional period of ten years,  particularly if the victims                 
  were  very young  children, allows  the  victims to  grow up                 
  during the period of time when the offender is on probation,                 
  and gives them  some additional protection.   It is designed                 
  not to have  impact on  the Department of  Corrections by  a                 
  provision which says that if they  go for five years without                 
  having  their  probation revoked,  any  remaining period  of                 
  probation is essentially  unsupervised.  They don't  have to                 
  see a probation officer.  A  probation officer does not have                 
  to carry  them on their case  loads, but there is  still the                 
  possibility of the probation being revoked and going back to                 
  jail  during that additional period  of time.  Sex offenders                 
  are one class  of offenders that  can be deterred by  having                 
  something hanging over  their head,  as distinct from  other                 
  types of  offenders  if they  are  alcohol or  drug  related                 
  sometimes  no  matter  what  you  do,  there  is  not   much                 
  deterrent, but sex offenders  can be deterred, and for  that                 
  additional period of five to ten  years it is appropriate to                 
  deter them.                                                                  
                                                                               
  Number 721                                                                   
                                                                               
  REPRESENTATIVE GREEN asked  if it  would be advantageous  on                 
  line nine of page one to make that "may?"  If  somebody does                 
  carry over just  a little bit, maybe  one more year, in  the                 
  sixth or  so, maybe then  letting go?  Or  does that somehow                 
  defeat the purpose?                                                          
                                                                               
  Number 732                                                                   
                                                                               
  MR.  GUANELI  said  Corrections felt  comfortable  with this                 
  because they wanted to say there  would be no fiscal impact,                 
  and  having "may" in  there would  probably require  a judge                 
  having to make  the decision.   You would  probably have  to                 
  file another piece  of paper and  have another hearing.   He                 
  said he thinks it was felt that if you have gone  five years                 
  and not done anything, then you really  do not need to see a                 
  probation  officer  face  to  face.    A lot  of  these  sex                 
  offenders are just regular people who hold down jobs and are                 
  employable.  It is not as if they have to be urged to go out                 
  and find employment, and that sort of thing.                                 
                                                                               
  Number 746                                                                   
                                                                               
  REPRESENTATIVE  GREEN  said  it   was  Mr.  Guaneli's   word                 
  "probably" that makes him wonder.                                            
                                                                               
  MR. GUANELI  said  that was  a  good point,  but  basically,                 
  Corrections felt comfortable  with this, and based  on that,                 
  that is what he would urge the committee to stay with.                       
                                                                               
  CHAIRMAN PORTER said he thought there is a balancing between                 
  fiscal   responsibility   and   accomplishment   with   this                 
  particular category of people.  He said he feels the risk to                 
  be minimal.                                                                  
                                                                               
  REPRESENTATIVE GREEN said he was not trying to delay things,                 
  but it is his  concern that it's felt to be  imperative that                 
  they still  do it  at 4.8  years, and  this guy  is still  a                 
  threat,  but at 5.1,  suddenly he  is okay.   Representative                 
  Green suggested there may be a period that 5 is a reasonable                 
  number  to look  at, but  maybe after  2, this  guy  is okay                 
  again,  but   this guy  continues to  do that,  and that  is                 
  alright.  He said he feels uncomfortable about letting these                 
  people go.                                                                   
                                                                               
  CHAIRMAN  PORTER  said  he   thinks  Representative  Green's                 
  analogy assumes that there is full probation supervision for                 
  those 5 years, and in most cases, that is not the case.                      
                                                                               
  REPRESENTATIVE GREEN said he understands that, but his point                 
  is that on those infrequent occasions, he would rather error                 
  the other  way even  if it  costs a  little more.   If  this                 
  happens infrequently, then it should be a zero fiscal note.                  
                                                                               
  Number 765                                                                   
                                                                               
                                                                               
  REPRESENTATIVE JAMES agreed with Representative Green.                       
                                                                               
  Number 789                                                                   
                                                                               
  MR. GUANELI  noted that there  is currently  another law  in                 
  Title 33 stating that a probation officer can go to  a judge                 
  at  any  time and  say "this  person  is really  doing well.                 
  There is no  further need for supervision."  He said that is                 
  something a probation officer can currently do.  Mr. Guaneli                 
  said they  don't do  that without  a judge's  authority.   A                 
  petition has to be filed with the judge and  a hearing would                 
  be held.   He said  in terms of  state liability,  probation                 
  officers are not going to make this decision on their own.                   
                                                                               
  Number 823                                                                   
                                                                               
  REPRESENTATIVE  GREEN still  maintained  concerns over  this                 
  supervisory period.                                                          
                                                                               
  Number 840                                                                   
                                                                               
  REPRESENTATIVE JAMES asked how many  people are still having                 
  supervised probation at the end of the five years.                           
                                                                               
  MR. GUANELI answered  Representative James' question  saying                 
  that the majority  of people do not  still have probationary                 
  supervision after the five year period.                                      
                                                                               
  Number 843                                                                   
                                                                               
  REPRESENTATIVE GREEN proposed the amendment that  "shall" be                 
  changed to "may."                                                            
                                                                               
  CHAIRMAN PORTER announced the amendment is on page one, line                 
  nine, called Amendment #1.  Chairman Porter then objected to                 
  the  proposed  amendment.    A  roll  call  vote  was  taken                 
  Representatives  Porter,   James,  and   Kott  voted   "no."                 
  Representative Green  voted "yes."   Representative Nordlund                 
  passed on voting.  So the amendment failed.                                  
                                                                               
  MR. GUANELI gave the executive summary  on HB 525.  He  said                 
  the bill amends the  Alaska Rules of Evidence to  permit, in                 
  sexual assault cases,  when a  defendant raises the  defense                 
  that   the  victim   has   consented,   and   knows   narrow                 
  circumstances, the prosecution is allowed to permit evidence                 
  of  that  defendant's prior  convictions  or acts  of sexual                 
  assault,  or attempted  sexual assault.   The basis  for the                 
  legislation is that, in many cases, particularly with serial                 
  rapists, the jury  never hears that  this person has a  long                 
  history  of sexual  assaults  and the  person is  allowed to                 
  claim that the  victim consented, where  as if the jury  had                 
  heard that there had been a series of sexual assaults in the                 
  past, the jury might  have a very different view  of whether                 
  or  not  there  was  consent  or  lack of  consent  on  this                 
  particular  occasion.    That  is  a  primary  basis  of the                 
  legislation.  It is  a very narrow focus directed  exception                 
  to a  rule in Alaska and elsewhere that prior crimes are not                 
  allowed  into  evidence.   It essentially  says that  when a                 
  victim  is  put  on  the  stand  and  is   questioned  about                 
  everything that went  on that night, drug use,  alcohol use,                 
  hitch-hiking, whatever,  that the defendant's  past is  also                 
  relevant  as  to  how  many  other  women  he  has  sexually                 
  assaulted or how many he has attempted to assault.                           
                                                                               
  Number 888                                                                   
                                                                               
  REPRESENTATIVE KOTT made  motion to move  HB 527 out of  the                 
  House Judiciary Committee, with  individual recommendations,                 
  and  the  attached  zero  fiscal  note.    There   being  no                 
  objection, the motion carried.                                               
                                                                               
  TAPE 94-56, SIDE A                                                           
  Number 001                                                                   
                                                                               
  CHAIRMAN  PORTER announced  The  victims  in sexual  assault                 
  cases, by  virtue of  allowing evidence  of previous  sexual                 
  assaults by the defendant to be admitted if there is a claim                 
  that the act  was not  a violent act,  but was a  consensual                 
  act.  He asked if there was discussion.                                      
                                                                               
  Number 022                                                                   
                                                                               
  REPRESENTATIVE NORDLUND said  he would  have a problem  with                 
  this bill, except for the fact  that he has been informed by                 
  Mr.  Guaneli that  there are  rules of  evidence that  would                 
  allow  the  judge  to  dismiss  those situations  that  were                 
  unrelated.   If the  person asserts  that there  has been  a                 
  consent,  and  that there  might  have been  previous crimes                 
  committed, are two unrelated things, and to relate them here                 
  might be improper in some cases,  and most judges would find                 
  that  if  there  is  no  relationship,  that  would  not  be                 
  admissable.                                                                  
                                                                               
  Number 043                                                                   
                                                                               
  REPRESENTATIVE GREEN moved the  HB 525 be passed out  of the                 
  House  Judiciary  Committee, with  a  zero fiscal  note, and                 
  individual  recommendations.    Hearing  no  objection,  the                 
  motion carried.                                                              
                                                                               
  Number 055                                                                   
                                                                               
  CHAIRMAN PORTER announced HB 524 was before the committee.                   
                                                                               
  MR.  GUANELI explained that HB 524  would allow when someone                 
  who  has been arrested and charged with an offense involving                 
  domestic  violence,  and  is  released  from  custody  under                 
  conditions   of  bail,   if  that   person   violates  those                 
  conditions, there currently is a long period  of delay where                 
  a police  officer has  to go  before a  judge, explain  what                 
  happened, get an  arrest warrant, and  go out and find  that                 
  person.    This  period of  delay  in  these  kinds of  very                 
  emotional, highly explosive relationships  is dangerous, and                 
  there ought to be an immediate  arrest made when a defendant                 
  violates  a  condition  of  release.   Usually  the  primary                 
  condition is you do not contact your ex-wife.  It would also                 
  make  this  situation  comparable   to  the  situation  that                 
  currently  exists that when  a woman goes  into civil court,                 
  gets a domestic violence restraining  order, even though the                 
  person has committed no crime, if she is just fearful of the                 
  person or believes  that he  might commit a  crime, a  judge                 
  will issue a restraining  order.  If there is  any violation                 
  of that, the  person can be immediately arrested.   It is an                 
  anomaly  that people who have committed crimes and women who                 
  have  gone  to the  criminal  justice system  for protection                 
  actually  have  less  protection  when  the  ex-spouse comes                 
  banging on their door in the middle of the night.  This just                 
  equalizes the situation  and the  protection given in  those                 
  circumstances.                                                               
                                                                               
  Number 104                                                                   
                                                                               
  REPRESENTATIVE JAMES made a motion to move HB 524 out of the                 
  House Judiciary Committee  with individual  recommendations,                 
  and zero fiscal notes.                                                       
                                                                               
  Number 108                                                                   
                                                                               
  REPRESENTATIVE  NORDLUND   objected  for   the  purpose   of                 
  proposing an amendment.   The intent of the amendment  is to                 
  make  sure  that  individuals  who  are arrested  under  the                 
  provisions  of  this  new  law  would  be able  to  have  an                 
  immediate  hearing  in the  court.   Representative Nordlund                 
  referred to  the issues  raised by  the public defender  and                 
  said there could  be situations  where people are  innocent,                 
  and  they need to be brought in front of a court immediately                 
  to determine whether or not they were properly arrested.  It                 
  would change the law to say you would have the arrest first,                 
  and then  have the  hearing; instead  of having  the hearing                 
  first, and then the  arrest.  This would be  an improvement,                 
  but would still provide some protection for innocent people.                 
                                                                               
  Number 132                                                                   
                                                                               
  REPRESENTATIVE   PORTER  indicated   he   was  against   the                 
  amendment.  As he had explained, what this bill does is make                 
  one additional exception to the basic laws of arrest in this                 
  state, which are that an officer  may make an arrest without                 
  a  warrant on  a  felony crime  if he  knows  the crime  was                 
  committed  and  has  reasonable cause  to  believe  that the                 
  person  he intends to arrest committed  it.  That is to say,                 
  he does  not have  to appear  in his  presence.   If he  has                 
  investigated and  found  the  suspect  with  those  elements                 
  present,  he  can make  the arrest.    The general  rule for                 
  misdemeanor is that rule does not  apply.  To make an arrest                 
  without a warrant, you have to  have seen the offense occur.                 
  There are exceptions  to that.   Representative Porter  said                 
  the  bill  asks  the  legislature   to  consider  one  other                 
  exception to that rule.  The  said the rationale is that  in                 
  domestic violence situations,  it is a condition  of release                 
  anyway.   Some of  the other  exceptions are  in a  domestic                 
  violence case, an officer  who did not see the  assault, can                 
  come onto the scene and if he can build probable cause  that                 
  there was an assault, he can make an arrest, thus freeing up                 
  the victim from having  to make that citizens arrest,  which                 
  nine times out of  time they do not desire to do.  There are                 
  other exceptions to  this rule, but  by making an  immediate                 
  hearing, in Anchorage,  for example,  that would not  really                 
  constitute a great problem, because in Anchorage, as perhaps                 
  in  Fairbanks, an arrested person  is taken immediately to a                 
  magistrate before  they even go to  jail.  But if  this were                 
  Bethel, that would not  happen.  The judge would have  to be                 
  awakened  if he was there.   We would be asking something to                 
  happen  that could  not  happen, and,  if  I understand  the                 
  effect of the amendment, it would negate the ability to make                 
  that arrest.                                                                 
                                                                               
  Number 194                                                                   
  REPRESENTATIVE  NORDLUND clarified  he  was not  meaning  to                 
  negate  the  ability to  make  the  arrest.   He  said  in a                 
  situation like Bethel,  immediate is somewhat  relative, and                 
  who is to  say how immediate, immediate is,  but it would be                 
  an imposition  placed within  the law  that would  basically                 
  mean  as soon as  possible.  If  it is impossible  in a town                 
  like Bethel to have the hearing an hour afterwards, maybe it                 
  would have to be the next  morning, but it would not be  two                 
  days later.                                                                  
                                                                               
  Number 205                                                                   
                                                                               
  CHAIRMAN PORTER stated that there is currently a requirement                 
  that anyone  who is  arrested has  to go  to an  arraignment                 
  within 24 hours, so they wouldn't be thrown into jail for  a                 
  week.                                                                        
                                                                               
  REPRESENTATIVE  NORDLUND said he did not see any reason why,                 
  in a city like  Anchorage, you should not have  an immediate                 
  hearing, and not keep a person in overnight.                                 
                                                                               
  CHAIRMAN PORTER said  that they will  do that in  Anchorage.                 
  That does not  need to be written  into the law.   The first                 
  place an arrested person goes is to a magistrate.                            
                                                                               
  Number 224                                                                   
                                                                               
  REPRESENTATIVE NORDLUND requested that the amendment be held                 
  over until  he has a chance to  draft it and bring  it up at                 
  the next hearing.                                                            
                                                                               
  MS. LOPER noted that the bill  goes to the Finance Committee                 
  as there is a fiscal note from the Department of Corrections                 
  for $11 thousand.                                                            
                                                                               
  Number 262                                                                   
                                                                               
  CHAIRMAN PORTER  said the committee  would send a  letter of                 
  intent to   Finance, asking them to  consider Representative                 
  Nordlund's amendment.                                                        
                                                                               
  Number 288                                                                   
                                                                               
  REPRESENTATIVE JAMES noted that Representative Nordlund  may                 
  stand a better chance of getting his amendment passed in the                 
  Finance Committee.  She then moved that HB 524 be passed out                 
  of the  House Judiciary with individual recommendations, and                 
  the attached fiscal note.  Hearing  no objection, the HB 524                 
  was passed out of committee with individual recommendations.                 

Document Name Date/Time Subjects