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." SENATOR LOREN LEMAN testified in support of CSSB 13(JUD) am (ct rule fld). He noted that the legislation allows the introduction of DNA testing in civil and criminal trials. The legislation also changes the standard of DNA evidence from the Frye to the Daubert test. The Daubert approach is used in federal cases. He noted that court rule changes included in SB 13 failed to pass the Senate. He suggested that the court rule change proposed in an amendment by Representative Parnell be adopted. Members were provided with Amendment 1 by Representative Parnell (Attachment 9). Amendment 1 would remove the findings section and add back one court rule change by amending Rule 703. Senator Leman emphasized that the findings section of the bill has been substantiated by expert testimony. He noted members' intent to streamline the legislation by removing the findings section. He stressed that removal of the finding section does not reflect any question as to their validity. Senator Leman noted that without the addition of the court rule changes DNA evidence can still be introduced in civil or criminal trials. However, the change from the Frye to the Daubert standard could not be made without the court instituting the change. He asserted that the Daubert standard is a superior method. He emphasized that DNA testing can help absolve persons of crime. Representative Brown questioned if the court rule has to be expressly modified in order to be changed. She noted that the title does not accommodate a court rule change. (Tape Change, HFC 95-44, Side 2) Senator Leman emphasized that the bill should have at least one court rule change. He assured members that the Senate will support the addition of the court rule change. 10 Representative Brown asked if DNA profiles could be introduced without having to prove their scientific validity. Senator Leman responded that the Frye standard requires the exercise of showing general consensus in the scientific community. Under the Daubert standard the judge would admit evidence on the basis of each case's scientific validity. Representative Brown noted that there are different ways to type DNA samples with varying degrees of adequacy. Senator Leman noted that methods are changing. No specific method is identified in the legislation. The judge has the ability to look at the evidence and determine if there is scientific validity to the DNA evidence for each case. The test's validity would be debated at trial. He noted that evidence in the Simpson trial is being debated. In response to further questioning by Representative Brown, Senator Leman noted that the legislation states that "the evidence of a DNA profile is admissible to prove or disprove any relevant fact." He noted that the jury can weigh the adequacy of the evidence along with other evidence which is presented. Representative Brown asked if the court has addressed the issue. Senator Leman stressed that the court will continue with the Frye standard unless the change is made by the Legislature. He emphasized that under the Frye standard it costs approximately $20 thousand dollars to demonstrate general consensus in regards to the scientific validity of DNA testing. He observed that there is a general consensus in the scientific community in regards to DNA typing. In response to a question by Representative Brown, Senator Leman explained that several experts are selected to establish the fact of a scientific consensus in regards to the validity of DNA testing. He emphasized that there may not be a consensus on the accuracy for each type of testing or the validity of a particular sample. He maintained that the scientific community now accepts that each person has a unique DNA print. He stressed that there is a consensus that DNA testing is a scientifically valid procedure for presenting evidence. DEAN GUANELI, CHIEF ASSISTANT ATTORNEY, DEPARTMENT OF LAW stated that there is general scientific consensus that a DNA molecule 3exists, that it can be found in all the cells of the body, and that it can be broken up through the application of certain chemicals. When the parts are broken up and analyzed they can be compared with other DNA molecules from other individuals. He acknowledged that the consensus as to the level of probability does not have unanimity in the scientific community. He noted that the 11 United States Supreme Court has adopted the Daubert standard. He suggested that courts be instructed to look to the scientific validity not the to unanimity in the scientific community because some of the procedures are too new to have established scientific unanimity. Mr. Guaneli stated that judges will weigh the pertinent factors such as the adequacy of the sampling or the probability factor based on the defendant's subgroup. He explained that the court has not felt it is within their purview to change the standard. He stated that the issue is making its way to the Alaska Supreme Court. He noted the amount of money spent by the state to bring some of the world's foremost experts on DNA typing to testify in serious criminal cases. Mr. Guaneli noted that the legislation will allow local experts to testify in regards to the scientific validity of the test used for a particular sample. He noted that juries will need to be educated. He emphasized that in-state experts will be available. JAYNE ANDREEN, DIRECTOR, COUNCIL ON DOMESTIC VIOLENCE AND SEXUAL ASSAULT testified in support of CSSB 13(JUD) am (ct rule fld). She stressed the impacts of DNA testing and evidence presentations on sexual assault victims. She noted that sexual assault is one of the lowest reported crimes. She estimated that only 5 - 25 percent of cases are reported. She stressed the difficulty in proving cases. In many cases the only evidence is the victim's word against the offender's. Victims feel victimized by the court process. She emphasized that DNA testing provides an additional element of physical evidence that is not currently available. She observed that there is a higher rate of conviction with DNA evidence in sexual assault cases. She suggested that DNA evidence will result in a higher reporting rate of sexual assault cases. Representative Therriault MOVED to adopt Amendment 1. Mr. Guaneli observed that the amendment would make the bill identical to HB 52. He stated that the amendment will place the test in statute rather than in the court rule. He maintained that adoption of the amendment will support the argument that the court should accept the change based on the statutory directive. Senator Leman added that the amendment removes the findings section. He stressed that no statement is being made in regards to the validity of the findings. The references to discovery were also removed since they are already found in court rules. There being NO OBJECTION, Amendment 1 was adopted. Representative Martin MOVED to report HCS CSSB 13 (FIN) out 12 of Committee with individual recommendations and with the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. HCS CSSB 13 (FIN) was reported out of Committee with a "do pass" recommendation and with four zero fiscal notes by the Department of Law, dated 2/9/95; Department of Public Safety, dated 2/9/95; the Department of Corrections, dated 2/9/95; and the Department of Administration.