Legislature(1995 - 1996)

02/22/1995 01:07 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 HJUD - 02/22/95                                                               
 Number 470                                                                    
 REPRESENTATIVE GREEN, sponsor of the bill, introduced it, saying it           
 would allow the introduction of DNA as one of the pieces of                   
 information used in a trial.  By no means would it be the make or             
 break piece of evidence, but it would be allowed in addition to               
 other evidence, to help establish the guilt or innocence of an                
 Number 489                                                                    
 LISA MOCK, Legislative Aide to Representative Joe Green read the              
 sponsor statement:                                                            
 "In recent years, the Alaska Legislature has invested significant             
 amounts of money to create one of the best state forensic crime               
 labs in the country.  A substantial portion of those dollars has              
 gone into state-of-the-art deoxyribonucleic acid (DNA) analysis               
 equipment and experts.  Having now made the scientific investment,            
 it is time for the Legislature to ensure that DNA evidence can                
 routinely be heard by Alaskan juries.                                         
 "DNA analysis involves the comparison of the unique genetic coding            
 found on chromosomes in samples of body fluids.  Since the mid-               
 1980s, DNA analysis increasingly has been used to match samples of            
 body fluids found at crime scenes with those of suspects.  If the             
 samples match, the laboratory then determines the probability that            
 the samples could have come from someone other than the defendant.            
 "Scientific testimony is often the deciding factor for the judicial           
 resolution of civil and criminal cases.  To test for the                      
 admissability of scientific evidence such as DNA, Alaskan courts              
 have used the Frye test since 1970.  Under the Frye test, in order        
 for scientific evidence such as DNA to be admitted in Alaskan                 
 cases, the court must determine whether there is a general                    
 consensus in the relevant scientific community that the scientific            
 testimony is reliable.  This is sometimes called the "general                 
 acceptance" test.                                                             
 "The problem with the Frye test is that is uses a social standard           
 -- general consensus -- rather than a scientific standard.  The               
 Frye test makes it nearly impossible, and outrageously expensive,           
 for an Alaskan judge to determine in each individual case what                
 constitutes a general, national scientific consensus.                         
 "Furthermore, the Frye test results in very high court costs.  In           
 order to meet the standards of Frye, there are frequently                   
 repetitive hearings involving similar expert testimony.  For                  
 example, in September 1994, a DNA hearing for a murder case in                
 Anchorage cost the state between $10,000 and $20,000 to provide               
 four DNA experts from laboratories in North Carolina, California,             
 and Oregon.                                                                   
 "If enacted, HB 52 would enable the court to first determine if the           
 evidence is relevant, then weigh the evidentiary value against the            
 prejudicial effect the evidence may have on the defendant's case.             
 Passage of HB 52 would allow the court to make a preliminary                  
 assessment as to whether the underlying reasoning or methodology of           
 the DNA testing is scientifically valid and if it can be applied to           
 the cases at issue.  The inquiry is flexible, and more importantly,           
 focuses on scientific validity, not general consensus.  If the                
 principles, methodology, and reasoning are scientifically valid,              
 then it follows that the inferences, assertions, and conclusions              
 derived therefrom are scientifically valid as well.                           
 "HB 52 would provide a flexible and more lenient test that favors             
 the admission of any scientifically valid expert testimony.  The              
 ongoing debate over DNA testing underscores the need to deal more             
 effectively with the difficulties that arise whenever complex                 
 scientific technology is introduced as evidence in a court of law.            
 I strongly urge the Alaska Legislature to pass HB 52."                        
 Number 560                                                                    
 REPRESENTATIVE TOOHEY made a motion to adopt Version M as the work            
 draft.  Seeing no objection, it was so ordered.                               
 Number 580                                                                    
 MR. GUANELI discussed the legal aspects.  He explained the changes            
 that have been made through the different versions of the committee           
 substitute.  Essentially what this addresses is the standard for              
 admissability.  Definitions of what DNA profile means, as was just            
 explained, turns on this scientific validity of the evidence,                 
 rather than on some other more difficult standard, such as general            
 acceptance in the relevant scientific community.  Part of the                 
 question about DNA evidence is that it is a rapidly changing field.           
 There are labs all across the country doing work in the DNA field             
 and there are universities all across the country that are studying           
 the statistics on which the probabilities are based.  The research            
 is rapidly expanding through use of computers, but the relevant               
 scientific community that may use this type of evidence has a hard            
 time keeping up with the development of this testing, and therefore           
 the cutting edge of the field, which is certainly scientifically              
 valid, and some of the world's foremost experts will testify to               
 that effect; it really has not trickled down yet to the general               
 scientific community.  That is the problem in using this test that            
 the courts now use which dates from the 1920s.                                
 MR. GUANELI said the United States Supreme Court has adopted a test           
 based on scientific validity, and certainly for DNA evidence, which           
 is a modern, and rapidly changing field, it is appropriate to use             
 a more modern type of test for scientific evidence.  That is what             
 this does.  He clarified the costs of the experts in that trial               
 were not between $10,000 and $20,000; they were over $20,000.  Mr.            
 Guaneli approved those bills for payment.  They had the same kind             
 of costs in a murder/rape case in Fairbanks, where there were                 
 extensive hearings in front of the judge, and the judge wrote a               
 long opinion, and the case is up on appeal now.  There are                    
 limitations the Alaska courts have placed on the admissibility of             
 this evidence under that old test.  The courts will not, under the            
 old test, allow the experts to state that based on the best                   
 scientific testing, the probabilities are one in a million that it            
 could be somebody else.  They will be able to testify that, based             
 on other types of testing which are more accepted in the general              
 scientific community, that the odds are four out of 100, or                   
 something like that.  In some cases, that is good enough, and in              
 other cases, it may not be.                                                   
 MR. GUANELI stated one of the primary uses of DNA evidence is to              
 exclude individuals.  It is very good at excluding other suspects.            
 That not only protects innocent people, but it also helps the                 
 prosecution because a lot of times, particularly in murder cases,             
 there is no witness, so it is a circumstantial case, and one of the           
 best defenses at trial is to say some other person did it.  The               
 defense will point a finger at a number of people who may have been           
 in the area at the same time and may have done it.  By taking blood           
 samples from those people, we can exclude them with 100 percent               
 certainty.  That is what happened in the Fairbanks case.  A woman             
 was killed in her home.  The natural suspects, based on the                   
 investigation, were any number of men in the neighborhood.  All of            
 them except one gave a blood sample and were excluded.  This is               
 valuable evidence.                                                            
 MR. GUANELI wanted to clarify that when he had testified a couple             
 of weeks ago about the DNA data bank, he indicated at the time,               
 that as good as that bill was, it was really only answering half of           
 the question.  It is one thing to collect samples and to test those           
 samples and identify suspects, it is another thing to use that                
 evidence in court.  This is the other half of the picture.                    
 Number 670                                                                    
 REPRESENTATIVE FINKELSTEIN used the example of a case where they              
 are using DNA evidence and the defense is challenging the                     
 credibility.  Is this argument going on before the judge or the               
 jury?  Does a jury make decisions on scientific sufficiency of DNA            
 testing, or is it up to the judge?                                            
 MR. GUANELI said the judge would determine if the evidence is                 
 allowed to get in front of the jury.  And then, like any other                
 evidence, it is for the jury to decide how much weight to give that           
 evidence.  He was not saying that by passing this bill, they will             
 not have to pay experts to come in and give testimony.  We will               
 have to, because, in order for the jury to understand this                    
 evidence, and to view it as something other than a series of lines            
 on a chart, we are going to have to bring in some chemists from the           
 state crime lab who will be able to explain this to the jury.  But            
 the judge makes the initial determination as to whether the                   
 evidence is scientifically valid enough to go in front of a jury.             
 Once that decision is made it is up to the jury to decide whether             
 or not to give this information credibility, and that depends on              
 the way the test was done, the way the evidence was collected, and            
 that sort of thing.                                                           
 Number 690                                                                    
 REPRESENTATIVE FINKELSTEIN said that if it does get before a jury,            
 the defense can still spend their time trying to discredit the                
 scientific basis for the information, with or without this bill,              
 MR. GUANELI agreed.                                                           
 Number 695                                                                    
 LINDA BRANCHFLOWER, Alaska Peace Officers Association (APOA),                 
 testified via teleconference.  She said she is a detective for the            
 Anchorage Police Department and has worked with sex crimes for four           
 years.  DNA has been used by police agencies since 1986 to clear              
 people as well as to convict them.  For an analogy, fingerprinting            
 was introduced in the Saint Louis World's Fair in 1901, and it only           
 took five years to become widely accepted in American courts.  The            
 APOA feels this scientific procedure has been beneficial in courts            
 all over the world, and you should not bow to the pressure of these           
 criminal defenses bars, trying to keep a useful piece of evidence             
 form the court room.                                                          
 Number 720                                                                    
 ARVID BJORNTON, member of the Board of Directors of (STAR),                   
 testified via teleconference.  He is also a member of the Task                
 Force on Sexual Assault and Domestic Violence in Anchorage.  He               
 wanted to bring to light the importance of DNA evidence in court              
 cases to victims of violent crimes, especially sexual assault.  The           
 issue is usually one of consent.  In one situation a person will              
 say, "Yes I did it, and she was willing."  On the other end of the            
 spectrum is the person who will say, "I did not do it.  I was not             
 there.  I do not know who she is."  The admission of DNA evidence             
 tends to show whether the suspect was at the scene of the crime or            
 not.  It saves a lot of time and money.                                       
 Number 750                                                                    
 RANDALL BURNS, Alaska Civil Liberties Union (ACLU), said the group            
 is not opposed to the use of DNA evidence.  They did have concerns            
 about the validity of its uses.  "The admission of the DNA profile            
 does not require a finding of general acceptance in the relevant              
 scientific community of DNA profile evidence.", is a very strange             
 sentence to have in a statute.  What we are saying is we do not               
 really think it has to be generally acceptable on scientific                  
 principles in order to establish potential guilt or innocence in a            
 case.  It is a strange thing to say that we do not care that it is            
 not generally accepted or that it is scientifically valid.  We are            
 talking about the taking away the freedom of or the incarceration             
 of an individual, based on DNA evidence.  Before we rush into a               
 debate on the value of science, we need to recognize that the O.J.            
 Simpson case has shown us that there are lots of disputes, not                
 necessarily about the process of the DNA test itself, but about the           
 way in which the samples are collected, the validity of the labs              
 and the testing they are doing, and the kinds of calculations made            
 in determining validity of evidence.  This bill says nothing about            
 ensuring us the DNA samples used were collected properly,                     
 maintained properly at the lab, and that is a concern.                        
 MR. BURNS did not generally oppose DNA testing, but wanted to see             
 that there were assurances about procedures used.                             
 Number 827                                                                    
 REPRESENTATIVE FINKELSTEIN saw Mr. Burns' point, and also thought             
 there could be a clearer way to say it.                                       
 TAPE 95-16, SIDE A                                                            
 Number 000                                                                    
 CHAIRMAN PORTER said the standard they would not like to meet, is             
 the situation that gets you to go get five experts who are so                 
 behind the power curve on this technology, that they will say, "No,           
 this is not generally excepted.  I have never heard of it."  Of               
 course, they have not opened a book in ten years either, but you              
 can always do that, and it will take years to get through a trial             
 if that is the way you have to operate.  If you have an expert that           
 says, "This is invalid because of this," and "That is relevant and            
 can be admitted," the judge then gets to say whether it is                    
 MR. GUANELI felt that accurately summarizes the intent of what we             
 are trying to do.  We want you to use the standard that has been              
 adopted by the United States Supreme Court, which is the scientific           
 validity standard.  The second sentence says that what we mean by             
 that is we do not want you to go back to using the old test.                  
 Because if a judge wants to interpret the phrase, "scientifically             
 valid" in a way that is really the old way of doing it, requiring             
 some consensus, we could end up back where we started because in              
 Section 3, this can amend a court rule to the extent that would               
 limit the admissibility; and the reason we are doing that is                  
 because we want to overturn this case.  This section is not going             
 to be in the statutes anywhere.  It needs to be set in statute                
 saying we do not want you going back to your old test, because it             
 really does not fit this kind of evidence anymore.  That is the               
 reason why the two sentences are in there.                                    
 REPRESENTATIVE GREEN said we are going to allow the Dalbert test,             
 and not have to use the Frye test.  That is really all it is                  
 REPRESENTATIVE BUNDE made a motion to move the bill out of                    
 committee, with zero fiscal notes and individual recommendations.             
 Seeing no objection, it was so ordered.                                       

Document Name Date/Time Subjects