Legislature(1993 - 1994)

03/25/1994 02:45 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 2:45 p.m.  Because the committee lacked a quorum, he                 
 stated that no formal action would be taken on the Governor's crime           
 package legislation (SB 349, SB 350, SB 351 & SB 353) and the                 
 meeting would be considered a work session.                                   
 DEAN GUANELI, Assistant Attorney General, Criminal Division,                  
 Department of Law, explained that the four bills before the                   
 committee are four of the six bills that comprise the Governor's              
 crime package for this legislative session.  The bills were                   
 developed after several months of work by prosecutors at the                  
 direction of former Attorney General Charles Cole, who wanted them            
 to come up with ideas for changes to the criminal justice system              
 that would be particularly directed toward protecting women and               
 children, that would be narrow and be focused, and would, if                  
 possible, not cost any money.   He noted all of the bills have been           
 endorsed by a number of agencies around the state.                            
 Addressing  SB 351  (CHARACTER EVIDENCE IN CRIMINAL TRIALS), which            
 makes changes the evidence rules, Mr. Guaneli said Alaska Rule of             
 Evidence 404(b) limits what the prosecution can introduce, and                
 because of the Legislature's frustration with the way this rule has           
 been interpreted by the courts over a number of years, the                    
 Legislature has made changes to this court rule a number of times             
 in the past.                                                                  
 Mr. Guaneli related that in many instances, particularly in sexual            
 assault cases and other types of assault cases, defendants are                
 allowed to claim, for example, that an sexual assault victim                  
 consented to the act, while at the same time being able to hide               
 evidence that they in the past have committed other rapes or other            
 attempted rapes.  Someone who is charged with assault can claim               
 that their victim was the first aggressor, their victim has a                 
 reputation for violence, while at the same time hiding evidence of            
 their own past violence.                                                      
 Number 160                                                                    
 SENATOR TAYLOR asked how, merely based upon the unproven assertions           
 of counsel through cross examination inquiry that an alleged                  
 consent occurred, would you ever get from that to the position                
 where the rape shield laws are no longer applicable for this                  
 victim.  MR. GUANELI answered that these cases often don't                    
 implicate the rape shield laws.  The defendant may not wish to                
 bring in evidence that the victim consented or had sex with                   
 somebody else on prior occasions, but it is enough to raise                   
 question in the jury's mind that there was consent and there was              
 consensual sex on this particular occasion.                                   
 Mr. Guaneli reiterated that the legislation corrects a number of              
 particular problems with Rule 404 and how it has been interpreted.            
 For example, on page 3, line 15, in the limiting language to show             
 a common scheme or plan, it was determined that that limitation is            
 too narrow and it should be any relevant evidence.  Someone's past            
 conduct is one of the best indications of future conduct, and as              
 long as a judge has made a determination that a specific incident             
 in a person's past is relevant to something that may have happened            
 on this particular instance that the jury is considering, then that           
 is something that ought to go in front of the jury.                           
 Number 375                                                                    
 MR. GUANELI explained that  SB 350  (ARREST FOR VIOLATING RELEASE             
 CONDITIONS) involves arrests arising out of domestic violence                 
 assaults.  He said there is a situation in Alaska where someone               
 could be charged with domestic assault, arrested, released on bail            
 and given a number of stringent conditions by the judge to follow             
 as a condition of getting out on bail.  If those conditions are               
 violated, there is a long process that it takes to get that person            
 back in custody.  It takes the officer going back to court,                   
 presenting evidence to a judge and getting an arrest warrant and              
 then going and finding the person again and arresting the person.             
 He said the kind of delays that are encountered really put women at           
 Number 405                                                                    
 involve the use of hearsay evidence in grand juries if the hearsay            
 is something that is conversations between officers assigned to               
 particular case.  It would allow the lead officer in a case to                
 testify to a grand jury on something that was told to him by                  
 another investigating officer.  He said it is a simple change, but            
 it is a change that all police agencies support in order to get               
 their officers back out on the street rather than in the court                
 Number 470                                                                    
 MR. GUANELI said  SB 353  (PEREMPTORY CHALLENGE OF JURORS) involves           
 peremptory challenges for trial juries.  In felony cases the                  
 prosecution can have six peremptory challenges to get a juror                 
 excused and the defense can do that with ten peremptory challenges.           
 It many instances, it gives the defense a great advantage in                  
 selecting and tailoring that jury to the defense's ideal of what a            
 jury ought to look like.  The department believes it is appropriate           
 to level the playing field and give both sides an equal number of             
 peremptory challenges in selecting a jury.  The legislation                   
 provides that each side be given six peremptory challenges.                   
 Number 505                                                                    
 SENATOR LITTLE asked if there was any opposition to the crime                 
 package legislation.  MR. GUANELI responded that the Public                   
 Defender Agency has raised some objection on each of the bills.               
 Number 540                                                                    
 BARBARA BRINK, Deputy Public Defender, Alaska Public Defender                 
 Agency, testified via teleconference from Anchorage in opposition             
 to  SB 349  (GRAND JURY EVIDENCE BY POLICE OFFICERS).  The agency             
 believes the legislation interferes with the constitutional right             
 of the citizens of Alaska to a fair and reliable grand jury.  She             
 said a grand jury cannot make a fair and reliable determination of            
 the credibility of a witness without seeing the witness.  There are           
 exceptions to this, and there are some hearsay rules that allow               
 hearsay testimony, but those are when there are special                       
 circumstances surrounding the making of the hearsay statement that            
 show it is reliable.  She cautioned it is a real danger to allow              
 police officers to decide whether this is a minor matter or an                
 important matter.                                                             
 Addressing  SB 350  (ARREST FOR VIOLATING RELEASE CONDITIONS), Ms.            
 Brink said she believes the current system works very well.   There           
 are 24-hour magistrates, and daily arraignments in both district              
 and superior court.  She believes the procedure works well and that           
 the proposed legislation is too broad.                                        
 TAPE 94-24, SIDE B                                                            
 Number 005                                                                    
 SENATOR TAYLOR commented that in areas like Anchorage and Fairbanks           
 there are judicial officers more readily available, but in the                
 rural areas it becomes more difficult.  MS. BRINK responded that              
 she has worked in some of the smaller communities, and she has                
 found that the smaller courts are actually pretty accommodating.              
 Number 110                                                                    
 SENATOR TAYLOR asked Mr. Guaneli how to prevent people from                   
 misusing this system that he is requesting be set up.  DEAN GUANELI           
 responded that in any case involving emotional circumstances, there           
 are going to be people who are upset and are going to say things              
 that they don't mean.  What is important is that the police officer           
 must have reasonable grounds to believe that bail conditions have             
 been violated and then they can make an arrest.  They are not                 
 required to make an arrest, but they have the discretion to do so.            
 Number 150                                                                    
 MS. BRINK then spoke to  SB 351  (CHARACTER EVIDENCE IN CRIMINAL              
 TRIALS) which is opposed by the Public Defender Agency.  They                 
 believe: opening trials too broadly to other claims of bad acts               
 risks depriving the citizen of Alaska of the constitutionally                 
 required presumption of innocence and due process of law; the                 
 changes would result in delay, expense and time-consuming mini                
 trials; and the bill does nothing to accomplish its stated goals of           
 reducing evidence about and trauma to a victim.  She said the                 
 stated purposes of the bill are laudable, but the bill itself does            
 not provide any additional protection to victims either in terms of           
 the evidence about them that comes in or in terms of the amount of            
 trauma they might suffer by having been involved in the criminal              
 justice system.  She added that victims of sexual assault cases are           
 already protected by the rape shield statute, and she urged defeat            
 of the legislation.                                                           
 Number 200                                                                    
 There was extensive discussion on a case relating to a serial                 
 rapist from California who served hard time in San Quentin after              
 being convicted of raping two women in California.  Not long after            
 his release, he moved to Alaska and began to prey on Alaskan women.           
 He was charged in Alaska with the same crime, but under current               
 Alaska law, the jury would never learn the truth about the                    
 individual's prior rapes and, instead, he successfully hid behind             
 the loophole in Alaska law that keeps prior rapes out, even where             
 the defendant claims consent.  Even after the individual was                  
 convicted, the judge allowed him out on bail pending his appeal.              
 Last year, while out on the bail, the man was again arrested and              
 charged with assaulting two more innocent Alaskan women.                      
 Number 420                                                                    
 MS. BRINK also testified in opposition to  SB 353  (PEREMPTORY                
 CHALLENGE OF JURORS).  She stated that she does not believe that              
 the goals of the bill, to level the playing and to save time and              
 money, will be satisfied by passage of the legislation.  She said             
 when selecting a perspective jurors, the goal is to get fair                  
 jurors, so the number being allocated on the defense side is                  
 recognition of the fact that we don't start out evenly, that many             
 people come into the court room with preconceived ideas and that it           
 is necessary to give extra peremptory challenges in order to make             
 sure that the presumption of innocence is followed by everyone in             
 the court room.  Also, she believes that there are better ways to             
 save time and money in jury selection.                                        
 Ms. Brink pointed out that the proposal was considered by the                 
 Alaska Criminal Rules Committee several times, and it was one of              
 the few areas where everybody on the Criminal Rules Committee                 
 agreed they did not want to make any changes to the peremptory                
 Number 524                                                                    
 SENATOR TAYLOR asked Ms. Brink is she would have any objection to             
 making it 10 and 10.  MS. BRINK answered that she wouldn't, and she           
 added that in her experience, neither side exercises all of its               
 peremptory challenges as a usual matter.  What is set up is usually           
 adequate for almost every case, however, more might be requested              
 for an extremely complicated or serious case.                                 
 Number 557                                                                    
 BRANT MCGEE, testifying from Anchorage on  SB 353  (PEREMPTORY                
 CHALLENGE OF JURORS), said he shares Ms. Brink's sentiments on the            
 bill based on his 16 years of experience as an attorney and his               
 experience of trying 55 and 60 trials.                                        
 Mr. McGee believes that the playing field is relatively level right           
 now and by changing it to six and six would make it a lot less even           
 than it is right now and make it an unfair process.  He said most             
 people think that most criminal defendants are guilty when they               
 walk in the room.  The presumption of innocence is something that             
 most jurors attempt to apply once they are jurors.                            
 Mr. McGee said he strongly opposes passage of SB 353 because of the           
 fact that this is not going to save time and the fact that it will            
 be unfair.                                                                    
 Addressing  SB 349  (GRAND JURY EVIDENCE BY POLICE OFFICERS), Mr.             
 McGee said he shares Ms. Brink's sentiments regarding this rule,              
 however, he recognizes that in many case the testimony of police              
 officers is somewhat cumulative and proforma before a grand jury.             
 TAPE 94-25, SIDE A                                                            
 Number 031                                                                    
 CINDY SMITH, Executive Director, Alaska Network on Domestic                   
 Violence & Sexual Assault, stated her support for SB 349, SB 350,             
 SB 351 and SB 353.                                                            
 Addressing  SB 350  (ARREST FOR VIOLATING RELEASE CONDITIONS) Ms.             
 Smith said this idea was originally brought to the Network's                  
 attention by judges in Fairbanks and Anchorage, so the judges did             
 not agree that the current system for rotation of bail and bench              
 warrants, etc., was appropriate or useful.                                    
 Ms. Smith said the process is not timely for most victims of                  
 domestic violence.  Police officers will make the judgement, not              
 the victim, so it is not an automatic sort of thing that because              
 somebody calls the police that there is going to be an arrest.                
 Ms. Smith pointed out that in domestic violence cases, particularly           
 when there is an offender who is stalking, or is trespassing on               
 property, or who is harassing to a very significant degree, the               
 victim's liberty is also at stake.                                            
 Number 113                                                                    
 Addressing  SB 351  (CHARACTER EVIDENCE IN CRIMINAL TRIALS), Ms.              
 Smith said her experience in six years in the field of sexual                 
 assault cases is that victims are, in fact, routinely put on trial,           
 that their sexual history is not considered exempt from                       
 examination, and that no case that she is aware of has any                    
 defendant's prior conviction been allowed, particularly in adult              
 rape cases.  She said for the Rules of Evidence to allow                      
 significant portions and significant questions of the victim's                
 activities to be examined, but to prevent that same kind of                   
 examination to go on about what the defendant's past is simply                
 Number 200                                                                    
 JAYNE ANDREEN, Director, Council on Domestic Violence & Sexual                
 Assault, stated the Council's strong support for the Governor's               
 crime package.                                                                
 Addressing  SB 350  (ARREST FOR VIOLATING RELEASE CONDITIONS), Ms.            
 Andreen said one of points that needs to be stressed from the                 
 victim's standpoint is that when talking about domestic violence,             
 stalking and sexual assault types of cases, we're talking about the           
 key issues being power and control, the ability of the alleged                
 offender to have power over the victim and to maintain a level of             
 control.  One of the clearest ways to give the power back to the              
 victim is by using a system that works.  She added that it is not             
 just liberty for the victim they are concerned about, it is her               
 right to safety.                                                              
 Speaking to  SB 351  (CHARACTER EVIDENCE IN CRIMINAL TRIALS), Ms.             
 Andreen pointed out that based on statistics and projections in               
 1992, between 4,000 and 8,000 sexual assaults took place in the               
 State of Alaska.  In reality, 566 of those assaults were reported             
 to law enforcement, and approximately 60 percent of those that were           
 reported were denied or declined for prosecution.  She said the               
 issue of consent is one that the victims know from the time the               
 assault happens is going to be something that they are going to               
 have to deal with.  When an assault victim has to go before the               
 court and listen to and respond to innuendos that she was at fault,           
 that she caused it all to happen, it is more devastating than the             
 actual physical assault in many cases.  She stressed that rape is             
 happening way too often in our communities and it is not going to             
 stop until we say we have had enough.                                         
 There being no further testimony on the legislation before the                
 committee, Senator Taylor adjourned the meeting at 3:35 p.m.                  

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