Legislature(2003 - 2004)
03/22/2004 08:04 AM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSHB 349(JUD)am-ILLEGALLY OBTAINED EVIDENCE/EVID RULE 412 REPRESENTATIVE RALPH SAMUELS, sponsor of HB 349, told members that this measure will change Court Rule 412. He explained that in a recent case in Anchorage, a woman was found stabbed in the street. The police followed the trail of blood to a house, where they found a man who later confessed to the killing on tape but that statement was suppressed. When testifying, the killer "did a 180 on his story" and claimed self-defense. The prosecutor, judge, defense attorney, and court clerk knew the defendant changed his story but could do nothing. The jury did not know but convicted him on other evidence. HB 349 would do nothing to change what evidence is suppressed. However, if a defendant chooses to get on the witness stand and change his or her story substantially, the judge can rule that the evidence can come back in and the jury would decide which story it believes. REPRESENTATIVE SAMUELS said HB 349 has some sideboards, "to make sure that we didn't get anything in court that we did not want. If the judge can rule that if it was coerced in any way, the evidence stays out in all circumstances, whether he changes his story or not." In addition, any non-voluntary evidence or a statement that should have been recorded but was not would stay out. HB 349 is his attempt to adopt the federal standard and the standard used in 30 other states. He noted that only 3 states use the same standard as Alaska. He read the following statement issued by the U.S. Supreme Court: The shield provided by Miranda cannot be perverted into a license to use perjury by a way of defense free from the risk of confrontation with prior inconsistent utterances. He said in reality, HB 349 will not affect very many people but it is very important for those it does affect. He noted he heard from the jury foreman in the Wallner case when he read the press release on HB 349. The jury foreman said the entire jury was furious when they found out that everyone else in the courtroom knew Mr. Wallner had confessed to the murder. He asked members to put themselves in the shoes of a victim of a crime that knew a person had confessed but changed his story and knew the jury could not be told of the confession. He said HB 349 adopts a more moderate, balanced standard. SENATOR THERRIAULT asked why the confession was suppressed in the Wallner case. REPRESENTATIVE SAMUELS thought it was because Mr. Wallner told the police he might need a lawyer when they arrived but he did not insist. However, once he mentioned a lawyer, the police probably should have waited until he got one. SENATOR THERRIAULT asked if Mr. Wallner could have been charged with perjury after the trial. REPRESENTATIVE SAMUELS said the evidence could be brought in for a perjury trial. He noted that Mr. Wallner's sentence [for murder] was 80 years; the maximum sentence for perjury is 6 years. SENATOR FRENCH asked Representative Samuels to speak to the second portion of the bill, which addresses other evidence illegally obtained. REPRESENTATIVE SAMUELS replied: ...the example would be in the Wallner case, had the knife not been stuck in her, had it been stuck somewhere else and Mr. Wallner had said yea, I left the knife in the woodpile or on the kitchen table or wherever he hid the knife, through the poisonous tree, once a statement is out anything that you found because of the statement is out and this would say if you change your story, if the statement's back in, then the knife is back in. The evidence is also back in. So you unpoison the tree - for the purposes of the impeachment only. SENATOR FRENCH asked if that would go beyond the Miranda doctrine into Fourth Amendment issues so that evidence taken in violation of the Fourth Amendment could be used to impeach. REPRESENTATIVE SAMUELS replied, "The way we've got it set up right now...only the statement to impeach what he said on the stand, any evidence, I mean if he changes his story, what's going to be allowed in is going to be very narrow to impeach what he said to change his story." SENATOR FRENCH asked if that pertains to the defendant only or to any witness. REPRESENTATIVE SAMUELS answered, "Just the defendant...co- defendant and former defendant." He said in a drug trial with four defendants, if one defendant gave a statement, you would not want one person to get off or to get the whole group off. He said, in other words, if he made a statement and his evidence was thrown out, he could not get up and change his story in court, which could taint the jury on all four defendants. SENATOR FRENCH asked, "So I'm wondering if the gun is seized in violation of the Fourth Amendment and a lying buddy gets on the stand and says that gun wasn't there that night, that gun was in my truck, he's not a defendant, he's just a lying buddy, an alibi witness - whether this bill covers that situation?" REPRESENTATIVE SAMUELS deferred to Mr. Branchflower. MR. STEVE BRANCHFLOWER, Director of the Office of Victims' Rights, said this bill could not be used to impeach the lying buddy because the bill only focuses on the defendant, the co- defendant or former defendant. CHAIR SEEKINS assumed that would carry across if a police officer committed perjury as well. MR. BRANCHFLOWER said that is correct. 8:30 a.m. CHAIR SEEKINS took public testimony. MR. BOB SHAVELSON, a resident of Homer, said he is concerned that HB 349 will erode Alaskans' civil liberties. Although he believes that protecting victims' rights is a laudable goal, he is concerned that emotion is driving policy. He pointed out the case referred to was a very damning indictment of the individual involved. He asked the committee to think carefully about intruding further on Alaskans' personal liberties. MR. BRANCHFLOWER stated support for HB 349 and said it will not change Alaska laws regarding confessions or Miranda requirements. Those laws are constitutionally based and derived from the U.S. Supreme Court. HB 349 will apply narrowly to circumstances where the defendant has given a statement that is later suppressed by a judge, where the statement was supported and otherwise voluntary, [and under several other circumstances that were inaudible due to poor transmission]. SENATOR FRENCH asked Mr. Branchflower to imagine a case where a defendant's confession to police was suppressed simply because of a Miranda violation, and questioned whether it would be possible for that person to testify at all without being impeached. MR. BRANCHFLOWER said yes, because what triggers application of HB 349 is whether the testimony was contrary and inconsistent to the suppressed statement. It would not apply if a person testified consistently because the purpose of the bill is to impeach. SENATOR FRENCH queried, "And what if the defendant simply avoided that area of questioning? Can you see a situation where he's more or less, on cross-examination, sort of drawn into that area or otherwise sort of somehow - I don't want to say trapped, but somehow baited or somehow forced to focus on the areas in question. Do you think there'd be a prior ruling maybe from the judge that that area would be precluded or what do you think?" MR. BRANCHFLOWER said he would expect, if there is a question along those lines, the defense attorney to take it up outside the presence of the jury and seek guidance from the court in terms of the parameter of the anticipated cross-examination. He suspects the defense would make it clear that he does not plan to go into the prohibited areas. Under Alaska court rules, the scope of cross-examination must be limited to the scope of direct [examination]. He felt most prosecutors would not want to venture the risk of a reversal but the judge would ultimately make the decision in light of the facts presented. CHAIR SEEKINS asked what constitutes a statement. MR. BRANCHFLOWER explained a statement would be an utterance from a defendant and, in the great majority of cases, it is the oral statement made to police. Although rare, a statement could be a written account that could be suppressed. CHAIR SEEKINS asked about the Alaska State Troopers' policy regarding recording contacts with individuals. LT. AL STOREY, Alaska State Troopers, explained that if recorded capability exists, the Troopers record the interview. He pointed out that complies with case law. The person simply needs to know that they are speaking to police officers; they do not need to know the interview is being recorded or that the recording is admissible. Most troopers carry a tape recorder with them to record conversations with suspects. CHAIR SEEKINS asked Mr. Branchflower if the tape recording of a suspect who was not advised of his Miranda rights could be used to impeach a later statement made under oath. MR. BRANCHFLOWER replied: It could be if the court determines before the fact that the statement was 'unlawfully seized' or illegally seized. Circumstances that dictate when a statement has to be recorded [are] established by our cases here in Alaska. Essentially our Supreme Court said that police must record a statement in its entirety from beginning to end, including the reading of the Miranda rights and the waiver. If the interview takes place under two circumstances - one, if the defendant is in custody or the suspect is in custody, and two, if that interview takes place at what is called a place of detention. Typically that means a police station. It can mean a police car. So those are the requirements and if a statement is taken in violation of those two requirements, the defense attorney may ask if the court may suppress the statement. And if the defendant takes the stand, why the application of the bill will come into play. CHAIR SEEKINS responded: I'm wondering if, by the use of electronic recording - a statement is an utterance, it's done at the scene of the crime, it's not done while the person is in detention of any sort, and their utterance, you know yea, I did it, whatever, is made on tape recording prior to the reading of any rights, and then if they take the stand and say they did not do it at a later date, then this pre-Miranda tape recording prior to detention then would be admissible if the judge allowed it in, if I'm correct, and could set up a whole new procedure for interviewing suspects, interview them prior to taking them into detention as much as possible to try to get a tape recorded statement, which could be later used to impeach. I'm just wondering if that wouldn't be an easier way for a law enforcement officer and for the state to be able to - I'm not saying that that would be necessarily - wouldn't be bad to get the guy off the street if he was a murderer but what are we doing in the area of rights? MR. BRANCHFLOWER said the law regarding the taking of statements is well settled in Alaska. What Chair Seekins is referring to is a body of law that deals with "on-the-scene" questioning. Essentially, no requirement exists under Alaska, tribal or federal law to inform a person on the scene of his or her Miranda rights because the police are still trying to focus the investigation and determine who was responsible. However, once the police have a suspect in custody, the police are required to inform the suspect of his or her Miranda rights. If the Miranda rights are read at a place of detachment, the recording requirement applies. He repeated that it is police practice to go to a scene and have a tape recorder turned on to capture any admissions that might be made. Those recordings are routinely allowed into evidence. SENATOR FRENCH affirmed that Mr. Branchflower's recount of how police investigations work is accurate. CHAIR SEEKINS commented, "So, if I'm correct then, if a police officer walks up to someone and says what's going on here and somebody confesses, they're dead." MR. BRANCHFLOWER explained that the definitions of a confession and an admission are well established. What Chair Seekins described would be an admission. That statement would be admissible. He noted that typically what happens is that the defense attorneys do not seek to suppress those statements. If the defendant says he did it, the defendant will be arrested within a short time and taken to the police station, where the interview will take place. That is where most of the benefits of HB 349 will come into play if a defendant later disputes on the stand what was said on the tape recording. REPRESENTATIVE SAMUELS pointed out that less than 2 percent of cases actually go to trial. Of those, HB 349 would only take effect where a Miranda violation occurred and the defendant took the stand at trial and changed his or her story. HB 349 will not make a sweeping change to the system. SENATOR THERRIAULT recapped that in those cases, the defendant does not have to take the stand but if the defendant does, he or she cannot lie. CHAIR SEEKINS said that although he agrees with the concept of HB 349, he imagines the average person does not know that a statement made prior to being detained is admissible in court. He wanted to hold the previous discussion to indicate that the committee is not trying to step on anyone's Miranda rights. MS. BARBARA BRINK, Alaska Public Defender's Agency, presented the following points as "food for thought." First, the purpose of Miranda rights is to protect an individual's constitutional right to not incriminate oneself and the right to counsel. She expressed concern about dismissing something as simple as a Miranda violation because that denigrates the importance of the Miranda right. The U.S. Supreme Court issued the Miranda ruling because it found that subjecting a person to custodial interrogation is inherently coercive, and therefore should require that a person be informed of their right to remain silent and to have counsel. Any request or mention of the right to counsel is to be scrupulously honored. That did not happen in the Wallner case. Those rules are not complicated and difficult for police to follow. She believes if the police cannot follow those simple rules, they should not be entitled to use the evidence obtained. The point of suppressing statements is to encourage police to act lawfully. The Fourth Amendment is designed to protect one's right to privacy and protect people in their own homes. Under [HB 349], she does not see why the police would bother to uphold Miranda rights or the Fourth Amendment. They could feel free to ignore those requirements, especially under paragraph 2, in which any evidence illegally obtained could be admitted to impeach a criminal defendant. MS. BRINK said no one condones perjury on the part of any witness, but she is more fearful of allowing the government to ignore all of one's constitutional rights in its desire to convict someone. She said she also appreciates the jury foreman being angry about not being given all of the available information in a case, but noted the rules of evidence in any trial often prevent both sides from introducing evidence they would like the jury to know. The judge's purpose is to limit the evidence to that which is relevant, non-prejudicial, and lawful. HB 349 removes the lawful requirement. She shares Mr. Shavelson's concern that one case is driving Alaska criminal justice policy, especially when those changes are unnecessary. She pointed out in the [Wallner] case that brought this situation to the legislature's attention, the defendant was convicted without the use of illegally obtained evidence. She cautioned the legislature against making sweeping changes in policy and sending the message to the police that unlawfully obtained evidence is acceptable. CHAIR SEEKINS said he was not aware that state law could override Miranda. MS. BRINK said HB 349 will allow the use of statements seized in violation of Miranda. CHAIR SEEKINS asked if those Miranda rights will still be in effect. MS. BRINK said the courts have enforced Miranda by excluding illegally seized evidence. The right is still in effect: the person has a right to be informed and have an attorney but what is being changed is the consequence for the police. If the police have no consequences, they should tell suspects of their right to an attorney but if they do not, there are no consequences. CHAIR SEEKINS noted that HB 349 will align Alaska law with federal law. He questioned whether Ms. Brink is saying the federal law violates the principle of Miranda. MS. BRINK said the rules have little meaning when they are not enforced and a right with no meaning has no remedy. She acknowledged that in the federal system, one can use illegally obtained evidence in these situations but she believes Alaska should have higher protections for its citizens. REPRESENTATIVE SAMUELS maintained that the U.S. Supreme Court said the shield provided cannot be perverted from a license to use perjury in a way from defense. Only three states do it the way Alaska does. SENATOR FRENCH asked Ms. Brink how many successful Miranda motions the public defender's agency brings every year. MS. BRINK said her agency does not have the ability to keep those statistics but Alaska leads the nation in requiring law enforcement officers to tape record the advisement of Miranda, which caused a decrease in litigating motions on Miranda. From speaking with her colleagues elsewhere in the country, those motions are very time consuming and are engaged in on a daily basis. That does not happen in Alaska because a clear record is available. With no further participants, CHAIR SEEKINS closed public testimony and asked for discussion by the members. TAPE 04-23, SIDE B SENATOR OGAN asked that HB 349 be held in committee until the next meeting because he feels that any legislation that pushes the envelope of the Bill of Rights deserves introspection. CHAIR SEEKINS asked what vote is required on this bill. REPRESENTATIVE SAMUELS replied that it requires a two-thirds vote of both bodies. SENATOR FRENCH shared Senator Ogan's caution. He said he is generally supportive of HB 349 but would like more time to think over several of the points made, especially the point made by Ms. Brink about the disincentive it will create to provide Miranda rights. He said his sense is that the motives of the police will not change because they will still be much better off with a lawfully obtained confession. CHAIR SEEKINS announced that he would hold HB 349 in committee. REPRESENTATIVE SAMUELS asked members, as they mull the bill over, to consider it from the standpoint of the victim and the real life implications. SENATOR FRENCH requested a copy of the federal analysis of this rule from Representative Samuels, who agreed to provide it.
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