Legislature(1995 - 1996)
01/30/1995 01:12 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
January 30, 1995
1:12 p.m.
MEMBERS PRESENT
Representative Brian Porter, Chairman
Representative Joe Green, Vice Chairman
Representative Con Bunde
Representative Bettye Davis
Representative Al Vezey
Representative Cynthia Toohey
Representative David Finkelstein
MEMBERS ABSENT
None
COMMITTEE CALENDAR
HB 25:"An Act revising Rule 16, Alaska Rules of
Criminal Procedure, relating to discovery and
inspection in criminal proceedings, to adopt
the comparable federal rule."
HEARD AND HELD
*HB 103:"An Act relating to the sale of correctional
industries products and services."
SCHEDULED BUT NOT HEARD
* HB 19:"An Act relating to the definition of 'fault'
as that term is used for the purposes of
determining the liabilities of parties in
civil actions, setting limitations on civil
liability, and authorizing the award, in
conformance with applicable court rule, of
attorney fees in civil actions."
SCHEDULED BUT NOT HEARD
WITNESS REGISTER
DEAN GUANELI, Assistant Attorney General
Criminal Division
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
(907) 465-3428
POSITION STATEMENT: Testified in favor of HB 25
JAMES H. MCCOMAS, Criminal Defense Attorney
500 L Street
Anchorage, AK 99501
(907) 258-0704
POSITION STATEMENT: Testified against HB 25
PREVIOUS ACTION
BILL: HB 25
SHORT TITLE: CRIMINAL DISCOVERY RULES
SPONSOR(S): REPRESENTATIVE(S) PARNELL, Porter, Green, Bunde
JRN-DATE JRN-PG ACTION
01/06/95 27 (H) PREFILE RELEASED
01/16/95 27 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 27 (H) JUD, FIN
01/18/95 75 (H) COSPONSOR(S): GREEN
01/19/95 89 (H) COSPONSOR(S): BUNDE
01/27/95 (H) JUD AT 01:00 PM CAPITOL 120
01/27/95 (H) MINUTE(JUD)
01/30/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 103
SHORT TITLE: COMPETITION W/ PVT SECTOR:CORRECTION IND.
SPONSOR(S): REPRESENTATIVE(S) KOTT, Bunde
JRN-DATE JRN-PG ACTION
01/20/95 101 (H) READ THE FIRST TIME - REFERRAL(S)
01/20/95 101 (H) JUDICIARY, FINANCE
01/30/95 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 25
SHORT TITLE: CRIMINAL DISCOVERY RULES
SPONSOR(S): REPRESENTATIVE(S) PARNELL, Porter, Green, Bunde
JRN-DATE JRN-PG ACTION
01/06/95 27 (H) PREFILE RELEASED
01/16/95 27 (H) READ THE FIRST TIME - REFERRAL(S)
01/16/95 27 (H) JUDICIARY, FINANCE
01/18/95 75 (H) COSPONSOR(S): GREEN
01/19/95 89 (H) COSPONSOR(S): BUNDE
01/27/95 (H) JUD AT 01:00 PM CAPITOL 120
01/27/95 (H) MINUTE(JUD)
01/30/95 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 95-5, SIDE A
Number 000
The House Judiciary Standing Committee was called to order at 1:12
p.m. on Monday, January 30, 1995. A quorum was present. CHAIRMAN
BRIAN PORTER acknowledged the presence of Representatives Bunde, B.
Davis, Green, Toohey, and Vezey. Representative Finkelstein
arrived late (at 1.37 p.m.).
HJUD - 01/30/95
HB 25 - CRIMINAL DISCOVERY RULES
CHAIRMAN PORTER stated that HB 25 would be heard.
Number 060
DEAN GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION,
DEPARTMENT OF LAW, explained the new changes in the proposed
committee substitute for HB 25. He stated the approach was to
provide some mandatory sharing of information on both sides. If
the defense wants to opt in to give additional information, then it
receives additional information from the prosecution. He realized
this rule may be in the process of being amended by the Supreme
Court. Therefore, it may be appropriate to incorporate some of Mr.
Salemi's adjustments to the rule that the Supreme Court is
considering.
MR. GUANELI described mandatory discovery, on page 1, as
information that tends to negate guilt, and as the minimum
constitutional standard. Language on lines 4 and 5, as already
appears in the Criminal Rules, would be mandatory. There has been
a court proceeding that has been recorded, and that minimal amount
of information ought to go to the defense. Lines 6 and 7,
describing mandatory discovery, that information required by
statute now, and should be provided as well. Lines 8, 9, 10 and 11
(also from the current rule) states anything obtained from the
defendant; i.e., books, diaries, photographs. Lines 12 and 13
requires mandatory information to be turned over to the prosecutor.
Line 14 is a truncated version of what the Criminal Rules Committee
recommended go to the Supreme Court. The rest of what they
recommended appears on page 6, lines 12 - 19.
MR. GUANELI continued, saying lines 18 and 19 provide for the
defendant to participate in non-testimonial identification
procedures. These are set out in the current discovery rule. This
includes things like photographs of the defendant, fingerprints,
appearing in line-ups, and handwriting samples. On page 2, lines
20 and 21, the statutory requirements are made mandatory. On lines
22, and on to the top of page 23, is a requirement or suggestion by
the Criminal Rules Committee, that if the defendant's attorney has
come into the possession of any physical evidence, that attorney
has an obligation to turn that over to the prosecution, or to the
police. It is a matter of the attorney's ethical obligations to do
that anyway. The Criminal Rules Committee thought it ought to be
set out in the rule. Often times, defense attorneys come into the
possession of murder weapons, cash, or bloody gloves, and they have
an obligation to turn those over to the prosecution. The courts
have said in order to preserve the confidential communications
between attorney and client; if the attorney got that from his
client, he does not have to tell the police where he got it, he
just turns it over. If he got it from somewhere other than his
client, he has to tell where he got it from. It is a matter of
ethics, but this sets out a procedure for that to be done, and this
is something the Rules Committee recommended.
MR. GUANELI then explained page 3, line 3, which states once you
have exchanged this mandatory information, the defense has an
opportunity to say whether he wants more information. In order to
get it, he has to turn over additional materials to the prosecutor.
Line 4 requires the defendant to file written notice, personally
executed by the defendant. An attorney could do this without
consulting the client, and hence, avoids the risk that an attorney
might waive client's constitutional rights without consulting the
defendant. This requires the defendant to personally agree to do
that. It is a good safeguard. It requires the attorney to inform
the client of what is involved. Line 15, subsection (b), lists
additional information the defendant can get, basically names and
addresses of people who know about the crime, and any statement
given by them. Line 28's language, which comes from the Criminal
Rules Committee draft says, "The prosecutor shall inform the
defendant of the names and addresses of expert witnesses who have
worked in connection with the case."
Number 330
CHAIRMAN PORTER asked Mr. Guaneli if page 2, line 8 included
statements made by the accused.
MR. GUANELI said that it did, yet it only applies to tangible
objects.
Number 345
REPRESENTATIVE JOE GREEN asked what provision would protect an
incompetent defendant from making this decision to give over
information.
Number 355
MR. GUANELI said the court would stop proceedings until the
defendant were competent to assist his attorney in proceedings.
That question is determined by a court on an individual basis; in
the same way that a defendant is determined to be qualified to
understand the plea of guilty, not guilty, or no contest. Page 4,
lines 11, 12, 13, and 14 had a provision which has moved up to what
is now mandatory disclosure. This requires information not
obtained by the defendant, to be disclosed. He felt the language
should remain, without the qualifier, "...which belonged to the
accused..." He felt that language could be replaced by "... which
the prosecuting attorney intends to use in the hearing, and which
were not previously disclosed to the defendant."
Number 435
CHAIRMAN PORTER suggested the language, "...other than those
obtained from..."
Number 440
MR. GUANELI thought that was a good choice of wording.
Number 445
REPRESENTATIVE CYNTHIA TOOHEY asked if it should say "... obtained
from or belonging to..."
CHAIRMAN PORTER and MR. GUANELI both agreed.
At 1:37 p.m. Representative Finkelstein arrived.
Number 450
MR. GUANELI explained that an expert witness statement would be
appropriate information to have in the materials being handed over
to the prosecution. Currently, the prosecution does not have to
turn over its legal research materials and theories. The current
rule does not have something similar for the defense. He felt it
appropriate that both be equivalent, so they added a provision
saying the defense does not have to turn over its legal research,
theories, or opinions. From the prosecution's standpoint, the most
critical information the defense has is who the defense witnesses
are going to be and what they have told the investigators. This
information is something the defendant agrees to give up when
opting to get additional information from the prosecution. This is
comparable to the language used under the prosecution's obligation.
On page 7, at the top, there should be a qualifying phrase in the
requirement to turn over physical evidence. Physical evidence does
not include paperwork under Criminal Rule 16A1(ii)(dd).
Number 585
REPRESENTATIVE CON BUNDE asked if deoxyribonucleic acid (DNA)
information would be appropriate to add to the list.
Number 595
MR. GUANELI said the list includes the taking of a blood sample, so
that is where the DNA information would be obtained from. He noted
page 9 had a lot of provisions removed from it, which brings the
rule back to the way it read three years ago. The particular
provision says anything a defendant gets, that the prosecution or
police have, has to remain in the exclusive possession and control
of the attorney. We do not want police reports, and witness
statements given out to defendants and spread throughout the
community. That rule, written three years ago, is amended by the
language proposed here for deletion now. The rule now reads that
the only things you have to keep in your possession are these few
things: Criminal history records, psychiatric exams, adoption
records, presentence reports, et cetera. It specifically allows
police reports and witness statements to be given out; and what has
happened as a result, is police reports have been spread throughout
the community. You can imagine what happens in small towns and in
prisons. Everyone knows who is involved and who witnessed what.
Number 665
REPRESENTATIVE AL VEZEY asked who had a hand in the working of this
bill.
MR. GUANELI responded that Representative Parnell's office had been
consulted with on all the issues, and the primary drafter was Mr.
Jerry Luckhaupt. Their chief appellate attorney also had input,
and so did the Criminal Rules Committee, a group of about 15
lawyers and judges from around the state, appointed by the Supreme
Court.
Number 685
REPRESENTATIVE VEZEY asked why the Criminal Rules Committee did not
change the rule.
MR. GUANELI explained that the Criminal Rules Committee is
historically made up of people who are either public defenders,
defense attorneys, or are former public defenders or former defense
attorneys; and the number of prosecutors has always been greatly
outnumbered by the number of defense attorneys on the committee.
He said they have been trying to get provisions such as these
passed through that committee for the last three years, to no
avail. Unless that committee makes a recommendation to the Supreme
Court to change its rule, the change is unlikely to occur.
Number 705
JAMES H. MCCOMAS, CRIMINAL DEFENSE ATTORNEY, testified via
teleconference from Anchorage. He said since 1988, he has served
on the Criminal Jury Instructions Committee, and it is not biased.
He felt that the discovery procedures at trial should be balanced,
because right now, it favors the defense. Historically, the
procedural imbalances in the criminal justice system have
explicitly been designed to provide some sort of balance the other
way, protecting the defense, given the incredible advantages the
prosecution has, that never get talked about, when we focus on
something like discovery, out of context. The advantage they have,
that will end up playing into the provisions of these bills, is in
investigative resources. They have the police department, the
State Crime Lab, and interagency cooperations. Another
disadvantage to the defense is the discretion the prosecution has
in charging a case, the defendant is there because an accusation
has been made, he does not initiate the process. He is in court to
face a charge. It is not too much to expect, that when a citizen
is called into court with that kind of allegation made against him
or her, they can expect that they are going to have some sort of
substantial information about why they are there; what the
allegations are, so they can begin to prepare their defenses.
MR. MCCOMAS said most of what is being proposed here would violate
the privilege against self-incrimination. Instead of balancing,
what they are proposing to do, is penalize the defense, unless the
defendant agrees to waive the privilege against self-incrimination,
to get more information. What this proposes, codifies a
requirement that people give up their constitutional right. They
do not have the legal right to make the defendant give up that
right. They threaten the defendant with the fear of having to go
into trial by surprise. The reason for these kinds of discoveries
which favor the defense, are simply meant to counterweight the
tremendous advantage of the prosection.
MR. MCCOMAS went on to explain there is a fundamental
misunderstanding of criminal justice. The federal discovery rule
requires disclosure of expert conclusions, intended to be used at
trial. That is fair, if it is used to let them know they may need
an expert witness of their own; but the idea of turning discovery
into a tool, allowing the prosecution to hurt the defendant is not
fair.
TAPE 95-5, SIDE B
Number 000
MR. MCCOMAS continued his opposition to the bill. Rule 16, the way
it presently exists, gives the right to regulate discovery. He
made known his interest and availability to work with the committee
on the subject.
Number 115
CHAIRMAN PORTER asked if there were questions.
Number 130
REPRESENTATIVE TOOHEY asked how certain the sponsor and Mr. Guaneli
were that this would not be overturned by courts.
Number 140
MR. GUANELI said it certainly will be taken through the courts.
The question is whether it is going to be overturned. He believed
anyone can give up constitutional rights if they feel it is to
their advantage to do so, as long as they are competent. The
current rule gives the defense much more information than is
constitutionally required. Limits and conditions can be put on
that. On that basis, there is no reason to believe the courts
would not uphold that.
Number 170
REPRESENTATIVE BUNDE understood there to be additional disclosure
beyond the constitutional mandates regarding disclosure and what
this bill is talking about.
Number 185
MR. GUANELI confirmed that not only does this require the state to
provide what is constitutionally required, but within the mandatory
disclosure in this new rule, there are other things the state is
not required to disclose, but were given to them anyway, such as
access to grand jury materials. The defense is given more than is
required, even if they do not opt in to these provisions.
Number 200
CHAIRMAN PORTER stated the constitutional right referred to here,
is the right against self-incrimination.
Number 230
REPRESENTATIVE DAVID FINKELSTEIN asked what it would be like to
argue the case without this high level of information made
available in a reciprocal agreement.
Number 240
MR. MCCOMAS said without access to witness statements, people would
be much less prepared for the trial. This could lead to mid-trial
continuances and postponements, so they can adequately prepare for
a trial with new information. Motions for mistrial are also
possible, based on new information provided. Since most criminal
cases do not go to trial, the restriction of the information the
prosecution shares with the defense is going to lead to an
increased number of trials.
Number 300
REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli why we would want to
require the defense to provide additional information to what they
are going to use at the trial? Why ask for information that will
not be used at the trial?
Number 310
MR. GUANELI answered that the defense will likely not use evidence
that may hurt them. That will likely assist the prosecution. The
more information available in the decision process, the better the
decision will be.
Number 340
REPRESENTATIVE FINKELSTEIN thought it did not seem equal and fair
to the person defending him or herself.
Number 350
MR. GUANELI felt the overall societal concern is making sure we
have all the information in front of the jury or the judge.
Number 370
REPRESENTATIVE FINKELSTEIN felt the basic theme of this bill is
philosophy. It appears to be a prosecutor's dream come true. He
asked if there was anyone involved in the preparation of this bill
who has any sort of defense point of view.
Number 405
CHAIRMAN PORTER said the Public Defender for the state made
suggestions that were incorporated into this draft, so, yes, and we
just received testimony from Mr. McComas, who certainly represents
the defense side.
Number 427
REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli if the committee
appointed by the Supreme Court had made any recommendation to the
Supreme Court about this, and if there is a current process going
on.
Number 445
MR. GUANELI said the Criminal Rules Committee has recommended a
number of changes currently being considered by the Supreme Court.
Those have been incorporated into this draft.
Number 480
REPRESENTATIVE FINKELSTEIN reconfirmed that information with Mr.
McComas.
Number 508
MR. MCCOMAS stated that the Rules Committee explicitly considered,
and was unable to get a sufficient consensus, to propose the very
election of discovery choice that this bill proposes. In three
areas, they have increased the explicit requirements of disclosure
on the defense, but they have not come anywhere near witness
statements or witness lists. They certainly have not said that the
defense has an obligation to turn over evidence of conviction. To
be accurate, it is safe to say the committee itself could not
ultimately agree to except the notion of two tiers of discovery;
one for those who are willing to waive in advance their
constitutional rights, and one for those who are not so inclined.
Number 535
MR. GUANELI said Mr. McComas was correct, and he felt he had tried
to elude to that previously.
Number 540
CHAIRMAN PORTER asked if the two tier option has been put into
effect in other states.
Number 548
MR. GUANELI believed that Florida has such a rule, and that 99
percent of the defendants opt in to the system.
Number 550
MR. MCCOMAS felt that there was inducement in those reciprocal
discovery situations.
Number 590
CHAIRMAN PORTER suggested that the adjustments be put into a
committee substitute so the bill could be heard again at a future
date.
ADJOURNMENT
The House Judiciary Committee meeting was adjourned at 2:35 p.m.
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