Legislature(1995 - 1996)
02/06/1995 01:30 PM Senate JUD
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* first hearing in first committee of referral
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SENATE JUDICIARY COMMITTEE
February 6, 1995
1:30 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Lyda Green, Vice-Chairman
MEMBERS ABSENT
Senator Mike Miller
Senator Al Adams
Senator Johnny Ellis
COMMITTEE CALENDAR
SENATE BILL NO. 10
"An Act revising Rule 16, Alaska Rules of Criminal Procedure,
relating to discovery and inspection in criminal proceedings, to
adopt the comparable federal rule."
SENATE BILL NO. 13
"An Act relating to the admissibility of evidence and testimony in
criminal and civil proceedings; directing the admissibility into
evidence of deoxyribonucleic acid (DNA) profiles in civil and
criminal proceedings; amending Rules 702(a) and 703 of the Alaska
Rules of Evidence to modify the rule relating to the basis or
foundation for the admissibility of expert opinion testimony that
is based on scientific evidence; and amending Rules 401, 403, and
705 of the Alaska Rules of Evidence."
SENATE BILL NO. 14
"An Act relating to criminal mischief."
PREVIOUS SENATE COMMITTEE ACTION
SB 10 - See Judiciary minutes dated 2/1/95
SB 13 - See Judiciary minutes dated 2/1/95
SB 14 - See Judiciary minutes dated 2/1/95
WITNESS REGISTER
Joe Murdy
Assembly Member
Municipality of Anchorage
P.O. Box 196650
Anchorage, AK 99519-6650
343-4431
POSITION STATEMENT: Testified in support of SB 14
John Salemi
Director
Alaska Public Defender Agency
900 W 5th Ave. Ste. 200
Anchorage, AK 99501-2090
POSITION STATEMENT: Testified on SB 10 and SB 14
Kevin O'Leary
Chief of Police
Anchorage Police Department
P.O. Box 196650
Anchorage, AK 99519-6650
POSITION STATEMENT: Testified in support of SB 14
Dean Guaneli
Assistant Attorney General
Department of Law
P.O. Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Testified in support of SB 10
ACTION NARRATIVE
TAPE 95-4, SIDE A
Number 001
CHAIRMAN ROBIN TAYLOR did not call the Judiciary meeting to order
because a quorum was not present. He announced that he and Senator
Green would listen to testimony on the bills scheduled to be heard.
It was 1:35 p.m.
SJUD - 2/6/95
JOE MURDY, Anchorage Assemblyman, testified in support of SB 14.
The Anchorage Assembly has a growing concern about the increasing
number of vehicles that are stolen every year in Anchorage. In
1994, 2,534 vehicles were stolen. When apprehended, the offender
is given a ticket for joyriding which carries a fine of $100 to
$200 for the first offense. Insurance rates are affected by these
thefts, and citizens are inconvenienced until their vehicles are
found. The Anchorage Assembly passed a resolution in support of SB
14.
SENATOR TAYLOR asked if 50 percent of the thefts are committed by
juveniles. Mr. Murdy replied affirmatively. SENATOR TAYLOR stated
changing the violation to a Class C felony will not affect how
juveniles are charged. He suggested restructuring the concept of
SB 14 to remove the juvenile status so that the standards that
apply to adults involved in moving violations would apply to
juveniles. SENATOR TAYLOR discussed the possibility of amending
a bill pending in another committee that addresses similar
concerns.
MR. MURDY informed committee members the Anchorage Assembly is in
the process of passing an ordinance that would allow the
Municipality to impound an offender's car for 30 days. This
ordinance is in response to the problem of looting by juveniles.
He offered to send a copy of the resolution passed by the Assembly
to the committee.
JOHN SALEMI, Director of the Alaska Public Defender Agency,
testified on SB 14. He noted the fiscal impact of SB 14 may have
escaped the notice of the Department of Law. If SB 14 passes,
those cases will be referred to the State District Attorney's
office, since the Anchorage Municipal prosecutor does not handle
felony cases. The Department of Law currently handles about 99
cases statewide, they may need to rethink the fiscal impact now
that several hundred cases may be referred to the Anchorage
District Attorney's office. He explained that 1100 auto thefts
were reported in 1993, and approximately 200 people were caught and
arrested. In 1994, the number of reported incidents was over
2,000. He questioned whether auto theft cases would be given a
lower priority since the number of violent crimes taken on by the
Department of Law has increased. This may require an additional
half-time position to the Felony Intake Unit.
CHIEF O'LEARY, Anchorage Municipal Police Department, reported the
following statistics. In 1993, 1,387 stolen vehicles were
reported; in 1994, 2,534 were reported; and during the month of
January, 1995, 260 reports were filed. The vast majority of
vehicles are recovered. In 1993, 275 individuals were arrested for
vehicle theft. He felt additional arrests would be made if this
offense was treated more seriously. There are groups of people who
steal vehicles for felonious purposes, therefore the Police
Department is in favor of increasing the penalties for that reason.
He added the District Attorney's office uses discretion when
determining charges against an offender.
SENATOR TAYLOR asked what percentage of the offenders are
juveniles. Chief O'Leary replied, in 1993, 123 adults and 152
juveniles were arrested for that offense.
SJUD - 2/6/95
SENATOR TAYLOR announced the committee would be discussing Work
Draft F of SB 10.
SENATOR LEMAN, sponsor of SB 10, informed committee members that
the original intent of SB 10 was to adopt the comparable federal
rule that corresponds to Alaska Rule 16. However, that cannot be
done, therefore the committee substitute addresses the issue from
a different perspective. This rule revision would allow the
prosecution to obtain information from the defense, and make it
comparable to what the defense is able to get from the prosecution.
This idea originated at the Crime and Corrections hearing last fall
in Anchorage. Former District Attorney Ed McNally raised this
issue as one that needed revision to create a more equitable
playing field in the discovery of information.
SENATOR TAYLOR announced to those testifying on SB 10 that no
action would be taken on the bill until those interested have had
the opportunity to review Work Draft F.
DEAN GUANELI, Assistant Attorney General, reviewed Work Draft F of
SB 10 for committee members. He explained the discovery rules
allow the defense access to all evidence generated by the
prosecution, but the prosecution does not have access to
information generated by the defense. SB 10 would correct that
situation by making discovery full and fair on both sides. The
Department of Law has been attempting, for a number of years, to
get changes to the discovery rules through the Criminal Rules
Committee appointed by the Supreme Court without success. The
Criminal Rules Committee has made minor changes to the discovery
rule, some of those changes are incorporated in SB 10.
Essentially, Work Draft F provides a two-tiered system of
discovery. Tier 1 would require the prosecution to turn certain
types of information over to the defense (page 1, line 11 through
page 2, line 13). This information is constitutionally required
and would show that the defendant is innocent. Grand Jury material
would also be given to the defense, as well as information required
by state statute. Simultaneously, the defense would be required to
release information about the defenses it intends to raise. If the
defense wants more information, such as witness statements and
names and addresses of experts, it must agree to provide the
prosecution with similar information. This would be the second
tier of Discovery and would be an option the defense could choose
to pursue. The defense would waive Fifth Amendment rights when
opting into Tier Two. That structure maintains constitutionality
given the Supreme Court's Scott Decision. Other changes in Work
Draft F move sections to pages 7 and 8 to renumber existing
sections. Mr. Guaneli stated the change would provide full and
fair discovery on both sides. The Alaska Supreme Court has amended
its civil rules so that mandatory discovery is required on both
sides. When both sides are equally informed, fairer and more just
results will occur as a result of litigation. It also allows
fairer results in pretrial resolution of a matter.
SENATOR TAYLOR asked whether the provision that requires the
disclosure of physical evidence would abridge a person's Fifth
Amendment right since the evidence would be used against the
defendant. Mr. Guaneli replied that specific provision was
recommended by the Criminal Rules Committee as the defense attorney
is ethically obligated to turn over physical evidence in their
possession. The Fifth Amendment guarantee is protected by the
provisions beginning on page 2, line 3. He explained in many cases
the defense attorney will turn over the murder weapon to the police
but will not disclose the source.
SENATOR TAYLOR noted if the client reveals evidence to his/her
attorney, the attorney would be required to advise the client to
turn the evidence over, otherwise the attorney would be an
accomplice to the crime. Under current law, and the provisions of
SB 10, the attorney is not required to disclose the source of the
evidence. Mr. Guaneli stated the evidence can be used if the
prosecution can establish, through independent means, it is
relevant to the case, i.e. through fingerprints.
Number 429
SENATOR GREEN asked if the defense is not required to provide the
prosecution with any information under the current system. Mr.
Guaneli responded the defense is currently required to disclose the
names of expert witnesses that the defense intends to use at trial.
SENATOR TAYLOR asked if SB 10 might prevent the defense from hiring
experts and cause them to utilize other devices. Mr. Guaneli felt
some defense attorneys might not choose to opt into these
provisions, although most find expert testimony very useful in
particular types of cases.
SENATOR TAYLOR stated the current system that requires the
prosecution to disclose information occurred through court
decision. He asked if changes to discovery rules have been made in
other states. Mr. Guaneli replied the State of Florida has the
two-tiered system and about 99 percent of the defendants opt into
that system, and California has a similar provision which may have
been changed through a constitutional amendment. SENATOR TAYLOR
asked if that is why Judge Ito took the exceptional step of
allowing the prosecution a second opening argument because of a
violation by the defense regarding the list of witnesses and asked
if that would not be a violation under Alaska's current rule. Mr.
Guaneli noted it would not, but some judges have tried to require
the defense to list witnesses at the beginning of the trial. He
noted that Alaska has a relatively small jury pool, and witnesses
and jurors may be familiar with each other. Early disclosure of
witness lists would prevent problems arising from that familiarity.
SENATOR TAYLOR acknowledged that occurrence and stated that is one
reason why changing the rule may be of benefit to the system. He
noted this issue is important and requires a thorough review.
Number 498
JOHN SALEMI testified on SB 10. He felt, from the defense's
perspective, there is a need for an adjustment to the current
discovery rules used by the Alaska courts. There are isolated
incidents when the prosecution is not given adequate notice,
especially in regard to expert witnesses. He supports changing the
rule to require the defense to provide adequate notice of expert
witnesses and the nature of their testimony. He expressed concern
that SB 10 may have unintended negative consequences for the
Criminal Justice System. He noted the playing field is not tilted
in favor of defendants because the State has more money to
prosecute cases. The discovery rule is one of the few areas where
the defense can evaluate the prosecution's case and make decisions.
Mr. Salemi felt Alaska has enormous resources at its disposal to
investigate crime and arrest people, and to prosecute them for
purported criminal acts. He explained that the State of Alaska
system of justice is very tough on crime. There has been a plea
bargaining ban for the past 20 years and Alaska has had the
toughest mandatory sentencing laws in the country for the past 14 -
15 years. He felt that despite the hostile environment for people
convicted, only six percent of mandatory sentence cases that are
prosecuted are tried; the other 94 percent result in guilty or no
contest pleas. He felt that is a good statistical indication that
the system is working. He stated most trials are straightforward
regarding who will be called to testify, and in many cases the
defense does not call any witnesses because the State has the
burden of proof. Mr. Salemi conceded that the prosecution has been
"ambushed" in cases, but that has occurred in a very small number
of cases. The Public Defender Agency lawyers view the playing
field as fair and not tilted in favor of defendants. Anyone can be
arrested and jailed whether guilty or not, therefore the defendant
should know what the case against him/her is about.
Regarding the two-tiered system, Mr. Salemi stated in the first
tier, the defense would be allowed limited discovery; in the second
tier the defense would opt in but the exchange of information would
be reciprocal. He explained that under Florida's system, the
defense decides whether to give up the Fifth Amendment right, but
in SB 10, the defendant, with no legal training, would be required
to give up that right. He said Public Defender clients do not
often trust their attorneys since they had no choice in hiring
them. No other state requires the defendant to give up that
constitutional right. If this rule is revised, there will be a
percentage of cases in which discovery will be limited, preventing
the defense from fully evaluating the case. This will increase the
likelihood that the defendant will make an erroneous decision which
will result in a trial case when they should have entered a plea
and cut their losses. Mr. Salemi feared the rule change could
raise game playing in criminal prosecution cases to a higher level.
Mr. Salemi felt the prosecution should be entitled to more notice
and more information about proposed experts called by the defense
and they should be given notice of all affirmative and statutory
defenses the defense intends to use. He also felt the names of
alibi witnesses should be provided to the prosecution. Regarding
the fiscal impact on the Public Defender Agency, of the 13 offices,
5 do not have investigators. If this bill passes, those offices
would need at least one investigator in each office.
Number 496
SENATOR TAYLOR requested Mr. Salemi to send information to the
committee, prior to Wednesday, regarding the areas provided in the
bill that would create an improved working relationship between
prosecution and defense attorneys. He also requested information
regarding mutually exclusive affirmative defenses. He expressed
concern that the bill sets up a situation in which a defendant
would have to waive his/her Fifth Amendment right in order to
receive what was previously ordered as normal discovery. He wanted
to provide assurances that neither side would be entrapped in a
difficult position, nor did he want to set up a situation that
would be promptly appealed to the Supreme Court.
SJUD
Number 464
SENATOR TAYLOR announced a new work draft of SB 13 (DNA Evidence)
was completed by Mr. Chenoweth which would be discussed on
Wednesday.
The meeting ended at 2:37 p.m.
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