1 HOUSE BILL 9 "An Act relating to the right of crime victims and victims of juvenile offenses to be present at court proceedings; and amending Rule 615, Alaska Rules of Evidence." Co-Chair Therriault explained that Representative Porter, the sponsor of HB 9, had been requested by the Administration to use the legislation as a vehicle for additional language. He clarified that the Committee would take testimony on the bill and then it would be held in Committee for rescheduling. REPRESENTATIVE BRAIN PORTER noted that the Alaskan Constitution had been amended in 1994 adding Article #1, a new Section #24, which specifically extended to crime victims, "The right to obtain information about and be allowed to be present at all criminal or juvenile proceedings where the accused has the right to be present...". He added, at least two Superior Court judges are interpreting the Alaska Statutes and Rule #615, Alaska Rules of Evidence, to exclude victims of crimes and juvenile offenses from being present in the courtroom during a trial of the accused until after the victim has testified. HB 9 was created to implement the mandate of the 1994 Amendment to the Constitution and to make clear to judiciary, a crime victim's right to be present at the trial and other proceedings of the accused, including juvenile proceedings, whenever the accused has the right to be present. Representative J. Davies asked if a balance would occur incorporating the two constitutional provisions. Representative Porter responded that the right of the victim to be present in court anytime the defendant is present, is already included in the Constitution. Previously, whereas, the victims rights were in statute and the defendants rights were in the Constitution, the defendants rights being constitutional had preference over statutory rights of victims. The court should create the balance and thus determine whose rights should prevail. JAYNE ANDREEN, EXECUTIVE DIRECTOR, COUNCIL ON DOMESTIC VIOLENCE & SEXUAL ASSAULT, JUNEAU, spoke in support of the legislation. She stated that equal rights would send a clear message that victims have the right to be present and heard. 2 Co-Chair Therriault spoke regarding a spousal abuse situation, asking if that situation would be a concern for the Council. Ms. Andreen stressed that there are a number of domestic violence victims who are willing and want to participate in the prosecution of their abuser. Cases do exist in which the victims do not want to be present throughout the trial. In those situations, the alleged offender could make eye contact, thus manipulating and controlling the victim further. She stated that it was important to clearly stipulate that victims would have either option. With the support and advocacy, the victims will be assisted in making a determination as to whether it would be in their best interest to be present during court proceedings. PAUL SWEET, (TESTIFIED VIA TELECONFERENCE), MAT-SU, spoke in support of the legislation, although, questioned how the bill would affect appeals on mandatory parole. Representative Porter explained that the victims right to be present at any court proceeding in which the defendant was present, would continue throughout the legislation. He added, other provisions exist in statute and in the Constitution that allow the victim to be notified and present their point of view. The victim would be well covered throughout the process. Mr. Sweet echoed his concern regarding the victims rights during the appeal process. Representative Porter agreed that the victim should be notified when the defendant was scheduled for an appeal. Mr. Sweet stressed that the court must be constitutionally required to notify the victims of the scheduled appeal process. Representative Porter acknowledged that the revised version of the legislation will incorporate language addressing that concern. Representative Porter added, an abundance of statutes currently exist, which address the notification process of the victims. The committee substitute will attempt to consolidate information so that the victim can look at the Victim's Right Statute and have information clearly defined in one place. Representative J. Davies advised that there is other legislation which addresses victim notification. JANICE LIENHART, (TESTIFIED VIA TELECONFERENCE), ANCHORAGE, voiced support of the proposed legislation. She noted that the Department of Corrections (DOC) is supposed to notify all victims, although, some "fall through the cracks" as a result of the case volume. For a victim of crime to heal, they need to have all the information regarding the crime, and then to be a part of the trial process if they so 3 desire. This will empower the victim to have a sense of closure around the situation. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, testified in support of the HB 9. She added that the legislation is similar to Governor Knowles Omnibus Bill. That legislation intends to remedy occasions when judges have excluded victims from court proceedings, even after the constitutional amendment was ratified. The ability to cross-examine, answers any possible problems of due process that arise on behalf of the defendant. She commented that it is important that victims see the justice system prosecute the defendants on their behalf. Representative J. Davies asked if a more fair trial could exist, if there was no cross-examination, suggesting that it could taint the trial. Ms. Carpeneti disagreed, noting that cross-examination was the best way to get at the truth. Whether or not a victim or a witness has heard testimony in a trial, they are subject to cross-examination. There is no good reason why the victim should not be present and watch the justice system proceed against the defendant. Representative J. Davies noted that his amendments would encourage testimony early on in the trial. Ms. Carpeneti did not agree with that positioning, stating that the order of witnesses is a tactile position and neither the prosecution or the defense would want to schedule their witnesses in any particular order. An additional problem to that approach would be when a witness was recalled. Co-Chair Therriault referenced a sheet in the handout, received from the Court System from the Criminal Rules Committee minutes regarding: Evidence Rule 615: Exclusion of Victims from Courtroom. That handout states: "The committee reviewed the Department of Law's request (dated July 10, 1996) that Evidence Rule 615 be amended to prevent victims from being excluded from proceedings at which the defendant is present. Chuck Pengilly expressed the view that Rule 615 should be eliminated entirely. He would like to do further research on this possibility. The committee agreed, however, in the meantime, to ask the supreme court to include the following note at the end of the rule: This rule does not authorize the exclusion of a crime victim, as defined by law, from any hearing at which the defendant has a right to be present. 4 See Alaska Const. art. I, & 24." HB 9 was HELD in Committee for further consideration.