Legislature(2023 - 2024)BUTROVICH 205
04/19/2023 01:30 PM Senate JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| SB65 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 65 | TELECONFERENCED | |
| += | SB 70 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
April 19, 2023
1:31 p.m.
MEMBERS PRESENT
Senator Matt Claman, Chair
Senator James Kaufman
Senator Cathy Giessel
Senator Löki Tobin
MEMBERS ABSENT
Senator Jesse Kiehl, Vice Chair
COMMITTEE CALENDAR
SENATE BILL NO. 65
"An Act relating to criminal law and procedure; relating to the
crime of stalking; relating to consecutive sentencing for
violation of conditions of release; relating to the duty to
register as a sex offender; amending the definition of 'sex
offense'; amending the definition of 'crime involving domestic
violence'; relating to multidisciplinary child protection teams;
amending Rule 6(r), Alaska Rules of Criminal Procedure; and
providing for an effective date."
- HEARD & HELD
SENATE BILL NO. 70
"An Act relating to coverage for additional insureds under owner
and contractor controlled insurance programs; and providing for
an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: SB 65
SHORT TITLE: HARASSMENT; SEX OFFENDERS & OFFENSES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/08/23 (S) READ THE FIRST TIME - REFERRALS
02/08/23 (S) JUD, FIN
04/19/23 (S) JUD AT 1:30 PM BUTROVICH 205
WITNESS REGISTER
ANGIE KEMP, Director
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Presented SB 65 on behalf of the
administration.
KATE TALLMADGE, Legal Intern
Criminal Division
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: Presented the sectional analysis for SB 65
on behalf of the administration.
ACTION NARRATIVE
1:31:11 PM
CHAIR MATT CLAMAN called the Senate Judiciary Standing Committee
meeting to order at 1:31 p.m. Present at the call to order were
Senators Giessel, Tobin, Kaufman, and Chair Claman.
SB 65-HARASSMENT; SEX OFFENDERS & OFFENSES
1:31:56 PM
CHAIR CLAMAN announced the consideration of "An Act relating to
criminal law and procedure; relating to the crime of stalking;
relating to consecutive sentencing for violation of conditions
of release; relating to the duty to register as a sex offender;
amending the definition of 'sex offense'; amending the
definition of 'crime involving domestic violence'; relating to
multidisciplinary child 5 protection teams; amending Rule 6(r),
Alaska Rules of Criminal Procedure; and providing for an
effective date."
1:33:21 PM
ANGIE KEMP, Director, Criminal Division, Department of Law,
Juneau, Alaska, presented SB 65 on behalf of the administration.
She informed the committee that the legislation intends to
protect victims and witnesses from having to relive traumatic
moments during grand jury proceedings. She stated that the
legislation promotes efficiency by reducing the backlog created
by the Covid-19 pandemic.
MS. KEMP continued that the legislation will not foreclose the
findings or filings of motions to dismiss the indictment. The
legislation will not prevent the grand jury from insisting upon
the presentation of additional evidence. She continued that the
legislation will not alleviate the prosecutor's obligation to
introduce exculpatory evidence. The legislation will not
undermine the constitution. She added that the legislation will
not require the prosecutor to rely on out-of-court statements if
they choose not to do so.
MS. KEMP stated that the legislation will prevent Alaska from
being used as a haven for individuals who have been convicted in
a sister state and move to Alaska to avoid registration
requirements. She noted that the legislation will not add
punishment to those offenses. The legislation will provide full
faith and credit to the sister states' judgments to ensure that
those individuals register for the time required by that state.
She pointed to changes made in the stalking in the first degree
statute, fixing a loophole. The current legislation carves out
stalking in the first degree under subsection (a)(1), which can
only be a felony if it is in connection to a domestic violence
protective order.
1:36:23 PM
MS. KEMP provided further information about the grand jury
process. She explained that the constitutional requirement was
established in art. 1, sec. 8, which states that grand jury
presentations must occur. The language states, "No person shall
be held to answer for a capital, or otherwise infamous crime,
unless a presentment or indictment of a grand jury,.
CHAIR CLAMAN asked if she was referencing the US Constitution.
MS. KEMP clarified that she quoted the Constitution of the State
of Alaska. She stated that the language was interpreted to mean
felony offenses or offenses that carry a punishment of a year or
more. She pointed out that the constitution does not discuss the
nature of the evidence utilized in the grand jury proceedings.
She clarified that when a person is charged with a felony
offense, the court has ten days to introduce the case to a grand
jury. The ten-day requirement was a rule enacted in the 1970s
and if a person is out of custody, the court has 20 days to
present the case to the grand jury. If a person is arrested for
an offense and remains in custody, the court that amount of time
to present the case.
1:38:24 PM
CHAIR CLAMAN asked how often the defense council waives time
giving the prosecution more than ten days to present the case.
MS. KEMP replied that jurisdictions vary. The practice in
Anchorage routinely establishes pre-indictment hearings. Many
individuals choose to waive that time to negotiate cases. She
added that delays do not favor the prosecution. She opined that
allowing a waiver is not the best practice unless there is
meaningful negotiation between the parties. Delays frequently
favor the defense because the state has the burden of proving
the case. She stated that if a person is arrested, the case must
be presented to the grand jury.
1:40:34 PM
MS. KEMP provided an example from her experience. She shared a
case about a 15-year-old girl who was forcibly abducted from a
middle school in Juneau. The girl and her siblings were
threatened. She was brutalized in the defendant's home. The
facts represented traumatic moments in the young girl's life.
The defendant was arrested, and the case was presented to the
grand jury within seven days. The procedure required Ms. Kemp to
call the young girl into a grand jury hearing to ask questions
about the most traumatic moments of her life. She was asked to
respond with intimate details about the incident to support the
elements of the offense. She stressed that this legislation
intends to prevent future victims from reliving traumatic
moments during a grand jury proceeding.
1:42:32 PM
MS. KEMP spoke to concerns that arose last year related to the
case law surrounding the legislation. She clarified that SB 65
does not require the prosecutor to introduce or bring a witness
to summarize the evidence. She added that the bill does not
propose a defense's remedy of an error or motion to dismiss the
indictment. She mentioned that an error in the grand jury
proceeding would place the process back at square one.
MS. KEMP shared another case. A homicide in Ketchikan led to a
reversal in conviction because of an inappropriate closing
argument. She explained that inappropriate behavior impacts
attorneys, and they have every reason to tread cautiously when
presenting evidence or arguments. She mentioned the framework of
the constitution, which does not speak to the nature of the
evidence that is introduced to the grand jury. The primary issue
for the delegate's concern was whether the grand jury
presentation was indeed necessary. She spoke about other cases
that were relevant to the legislation and noted that 33 other
states permit the introduction of out-of-court statements in
their grand jury presentation. Alaska does not currently allow
out-of-court grand jury statements.
MS. KEMP noted varying degrees in the 18 states that require an
indictment for a felony charge to proceed, and Alaska is among
them. She added that Alaska is among two states that do not
allow testimony at the grand jury. She stated that the
legislature amended the rule to allow for the introduction of
Alaska Public Safety Information Network (APSIN) histories. The
database where the criminal convictions are stored allowed the
introduction of the histories to the grand jury without a
corresponding statutory change. She added that HB 105 was
another example of a rule change without a corresponding
statutory action. The change pertained to evidence rule 404
(b)(1), which changed the rule to one of inclusion.
1:50:28 PM
CHAIR CLAMAN asked how many times the Criminal Rules Committee
made recommendations to the Alaska Supreme Court without
legislative action.
MS. KEMP replied that issues are decided by the Criminal Rules
Committee and recommended to the Alaska Supreme Court for
adoption.
CHAIR CLAMAN asked if Ms. Kemp sits on the Criminal Rules
Committee.
MS. KEMP responded that she sits on the Criminal Pattern Jury
Instructions Committee.
CHAIR CLAMAN asked how many Department of Law employees sit on
the Criminal Rules Committee.
MS. KEMP responded that two Department of Law employees sit on
the Criminal Rules Committee.
CHAIR CLAMAN asked which members represented the Criminal Rules
Committee.
MS. KEMP replied that several defense attorneys and judges
compile the Criminal Rules Committee. Members are appointed to
the positions.
1:51:53 PM
CHAIR CLAMAN asked whether the rule change part of SB 65 was
presented to the Criminal Rules Committee.
MS. KEMP responded that she did not know.
CHAIR CLAMAN suggested that the rules discussed in SB 65 are
complicated and involve constitutional principles. He wondered
why the Criminal Rules Committee did not vet the legislation
before it was introduced to the legislature.
MS. KEMP stated that she respects the work the Alaska Supreme
Court Advisory Committees perform. She revealed that the rule
modification process is slow. She opined that a rule such as the
one analyzed in SB 65 might take years to change in the advisory
committee process. She commented that a defense attorney's job
is to advocate for their client, sometimes to the detriment of
other clients. She expected that the committee would disagree
with the provision. She suspected significant division of
opinion about the nature and scope of the rule.
MS. KEMP relayed that another goal of SB 65 is to address the
backlog that the Covid-19 pandemic created She stated that
attorneys in Juneau fight for grand jury time. Witness
statements are relied upon and if a critical witness does not
show up, the case must be removed from the grand jury schedule,
which dismisses the case. Proceeding without a critical witness
might lead to a motion to release the indictment. She stressed
the critical need to address the backlog of 1200 pending cases
on the preindictment hearing status in Anchorage. She mentioned
the detrimental impacts of these delays on criminal
prosecutions.
CHAIR CLAMAN responded that he respects Ms. Kemp's perspective
that the defense attorneys would oppose the rule change, but his
experience was that the committees work collaboratively. He
questioned reconciling the backlog as a reason to change a court
rule. He surmised that the backlog might take years to work
through, but a rule change might be in place for 50 years.
1:59:22 PM
MS. KEMP responded that the backlog is not the primary argument.
The administration's primary concern is the desire to prevent a
victim or witness from revisiting their traumatic experience
during the grand jury proceeding. She explained the intent to
rely on the evidence as a summary. The grand jury could insist
on the physical presence of the victim if they chose, the rule
change simply allows the option. She stated that she would
personally utilize the option judiciously. She mentioned a
hypothetical scenario where a witness interviewed in connection
with a case provided unclear statements; in that case she may
prefer to obtain the statement in person.
MS. KEMP mentioned a past legislative effort providing for one
officer to summarize another officer's testimony. The history
surrounding that piece of legislation was to ensure efficiency
in the judicial system. She provided this summary to exemplify a
bill passed by the legislature that bypassed the Criminal Rules
Committee with a direct rule change. She shared that even though
the legislation now allows her to obtain testimony from another
officer, she prefers to obtain testimony from the primary
officer who directly interviewed the suspect.
2:02:35 PM
CHAIR CLAMAN recalled a rule stating the requirement for the
recording of in-custody interrogation of suspects. He stated
that a verbatim recording of the testimony was admissible under
the current court rule. He pointed out the validity of video and
audio in-custody interrogations, which have been a
constitutional requirement in the courts since the late 1980s.
MS. KEMP responded that in practice, one officer will testify
orally about the recorded conversation.
CHAIR CLAMAN countered that either officer can testify to the
content of the recording.
MS. KEMP provided an example where a defendant admitted to
assaulting a person and immediately thereafter stated that it
was in self-defense. If the primary officer did not meaningfully
review the recording, she would not want the grand jury to
review the information.
CHAIR CLAMAN stated that the conversation highlights the
complication of procedural matters. He opined that the rule
change should be reviewed by the Criminal Rules Committee.
MS. KEMP appreciated that the issues are complicated. She
offered to answer questions about the process and procedural
requirements. She agreed that rule changes had a great impact,
but the process was not unique.
2:08:16 PM
MS. KEMP reviewed the changes to the sex offender registry that
allow the Department of Law to give full faith and credit to the
judgments of other states. She mentioned a situation where a
person was convicted of a sex offense in Washington and then
moved to Alaska. She noted that with the proposed legislation
the person must register for the amount of time stipulated by
Washington.
2:09:44 PM
MS. KEMP offered to answer questions or provide cases that
further illustrate examples the legislation addresses.
CHAIR CLAMAN requested the sectional analysis.
2:10:21 PM
KATE TALLMADGE, Legal Intern, Criminal Division, Department of
Law, Juneau, Alaska, presented the sectional analysis for SB 65.
Section 1. This is a legislative findings and intent
section. The section clarifies that evidence the
prosecutor believes will be admissible at trial should
be admissible at grand jury. The section also
overturns the decision in State v. Powell, 487 P. 609
(Alaska App. 2021) to the extent that it held that
testimony may not be summarized at grand jury under
Alaska Rule of Evidence 801(d)(3).
Section 2. This section amends stalking in the first
degree (class C felony) to include situations where an
individual continues to stalk someone in violation of
a stalking or sexual assault protective order.
Section 3. If a person is being sentenced for a
violation of a condition of release under AS
11.56.757, this section requires the court to impose
some additional time for the underlying offense and
any additional crimes of violation of a condition of
release.
Section 4. This section amends AS 12.63.010(b) to
require a person who must register as a sex offender
to report additional information, such as professional
licensing information and passport information, to the
Department of Public Safety.
Section 5. This section makes a conforming amendment
in AS 12.63.010(d) to account for the changes made in
section 6.
Section 6. This section adds two new subsections to
AS 12.63.010 that require a person who must register
as a sex offender to notify the Department of Public
Safety if the person plans to leave the state or is
away from any address provided to the department for
seven days or more.
Section 7. This section amends AS 12.63.020(a) to
clarify the duration of the tolling period for sex
offenders who are in noncompliance with the chapter.
The tolling will be day for day.
2:12:13 PM
Section 8. This section corrects a cross reference
AS 11.61.123 and makes sexual penetration with a
corpse and sex trafficking in the first and second
degrees registerable.
Section 9. This section amends the definition of
"crime involving domestic violence" to include the
crimes of unlawful contact and interfering with a
report of a crime of domestic violence.
Section 10. This section amends AS 47.14.300(a) to
allow multidisciplinary child protection teams to
assist in the evaluation and investigation of cases
involving reports of sexual contact and sexual
penetration where both the perpetrator and the victim
are children under the age of 13. The purpose of this
section is to be able to provide both children with
the resources necessary to address this type of
behavior.
2:14:13 PM
Section 11. This section makes the applicability
section in ch. 4, FSSLA 2019 (HB 49), retroactive as
it pertains to the requirement for sex offenders who
have to register in another state to also register in
Alaska when they are present in Alaska regardless of
when they were convicted.
Section 12. This section is a direct court rule
amendment allowing witnesses to summaries the
testimony of other witnesses before the grand jury if
the prosecutor believes that that evidence would be
admissible at trial.
Section 13. This section repeals AS 12.40.110, which
allows out of court statements provided by children in
sex offense cases to be presented to the grand jury.
The amendments made in sec. 10 of the bill, alleviate
the need for this statute.
Section 14. This section is the applicability
section.
Section 15. This section is the conditional effect
section for the court rule change.
Section 16. This section makes the bill effective
July 1, 2023.
2:15:58 PM
SENATOR TOBIN articulated reservations about tackling an issue
of this magnitude. She asked about Section 12, page 11, line 13.
She asked about the legal standard for the word "believes." She
suggested that the statement was arbitrary in this context.
MS. KEMP replied that the language was not defined. She provided
an example where a witness was interviewed by a law enforcement
officer and the intention was to call the individual to trial.
She stated that if the hypothetical witness was no longer alive
during the grand jury proceeding, there would be no good faith
basis to believe that the evidence would be available at trial.
2:19:55 PM
CHAIR CLAMAN recalled that evidence that is legally admissible
at trial shall be admissible before the grand jury. He surmised
that if a court is reviewing what was presented under the rules
of evidence, the evidence would be admissible at trial. He
mentioned the subjective element in which the court would have
to decide whether the evidence was admissible at trial. He
wondered about the subjective view of the prosecution compared
to a routine analysis of the admissibility of evidence.
MS. KEMP stated that she would entertain suggestions for
different language that would not require delving into the good
faith basis aspect or whether the prosecutor believed something
to be true. She noted that the State v. Powell case involved a
prosecutor introducing a CAC interview through 801(d)(3).
CHAIR CLAMAN asked for an explanation of a CAC interview through
801(d)(3).
MS. KEMP explained that CAC refers to a child advocacy center
where young witnesses are typically taken. She added that Alaska
Rules of Evidence, 801(d)(3) involves a direct rule change by
the legislature that allowed for the introduction of a CAC
interview when certain criteria are met. The criteria have
aspects that require judicial findings. She stated that the
Powell v. State case involved a prosecutor stating that the
evidence would be admissible at trial; it relied upon the same
analysis as Alaska rule 801(d)(3). The Alaska Court of Appeals
determined that those foundational requirements are predicated
and could not be made given the procedural posture of the grand
jury proceedings.
2:25:05 PM
SENATOR TOBIN asked how old the child was in the Powell v. State
case.
MS. KEMP replied the child was older than age 10.
2:25:49 PM
CHAIR CLAMAN recessed the meeting to a call of the chair.
2:26:03 PM
CHAIR CLAMAN reconvened and held SB 65 in committee.
2:26:28 PM
There being no further business to come before the committee,
Chair Claman adjourned the Senate Judiciary Standing Committee
meeting at 2:26 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 65 version A 2.8.2023.PDF |
SJUD 4/19/2023 1:30:00 PM SJUD 5/3/2023 1:30:00 PM |
SB 65 |
| SB 65 Transmittal Letter version A 2.7.2023.pdf |
SJUD 4/19/2023 1:30:00 PM SJUD 5/3/2023 1:30:00 PM |
SB 65 |
| SB 65 Highlights version A 2.6.2023.pdf |
SJUD 4/19/2023 1:30:00 PM SJUD 5/3/2023 1:30:00 PM |
SB 65 |
| SB 65 Sectional Analysis version A 2.8.2023.pdf |
SJUD 4/19/2023 1:30:00 PM SJUD 5/3/2023 1:30:00 PM |
SB 65 |
| SB 65 Letters of Support - Received as of 3.22.2023.pdf |
SJUD 4/19/2023 1:30:00 PM SJUD 5/3/2023 1:30:00 PM |
SB 65 |
| SB 65 Fiscal Note DOA-OPA 2.7.2023.pdf |
SJUD 4/19/2023 1:30:00 PM SJUD 5/3/2023 1:30:00 PM |
SB 65 |
| SB 65 Fiscal Note DOA-PDA 2.7.2023.pdf |
SJUD 4/19/2023 1:30:00 PM SJUD 5/3/2023 1:30:00 PM |
SB 65 |
| SB 65 Fiscal Note DOC-IDO 2.6.2023.pdf |
SJUD 4/19/2023 1:30:00 PM SJUD 5/3/2023 1:30:00 PM |
SB 65 |
| SB 65 Fiscal Note LAW-CJL 2.7.2023.pdf |
SJUD 4/19/2023 1:30:00 PM SJUD 5/3/2023 1:30:00 PM |
SB 65 |
| SB 65 Fiscal Note DPS-CJISP 2.6.2023.pdf |
SJUD 4/19/2023 1:30:00 PM SJUD 5/3/2023 1:30:00 PM |
SB 65 |
| SB 70 version B 4.11.2023.PDF |
SJUD 4/19/2023 1:30:00 PM |
SB 70 |
| SB 70 Transmittal Letter 2.15.2023.pdf |
SJUD 4/19/2023 1:30:00 PM |
SB 70 |
| SB 70 Sectional Analysis version B 4.13.2023.pdf |
SJUD 4/19/2023 1:30:00 PM |
SB 70 |
| SB 70 Summary of Changes version A to version B 4.13.2023.pdf |
SJUD 4/19/2023 1:30:00 PM |
SB 70 |
| SB 70 Fiscal Note DCCED-DOI 2.8.2023.pdf |
SJUD 4/19/2023 1:30:00 PM |
SB 70 |