HOUSE BILL NO. 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." BARBARA BRINK, DIRECTOR, PUBLIC DEFENDER'S AGENCY observed that the bill has metamorphosed since she last testified. She stated that current rules operate to assure an accurate fact finding process. She emphasized that the reason a witness is excluded from a trial is to assure that their testimony or recollection of events is not modified or tainted by something they subsequently learn during the proceedings. Under current rules, the crime victim that is not actually a witness to a case would not be excluded. She asserted that, if a victim is also a witness, the judge is in the best position to balance the interest of the victim against assuring that the jury has the true facts before them. She emphasized that the human brain is not a true recorder of events and can be influenced by other factors. She stated that a prosecutor can solve the problem by calling the victim as the first witness. She spoke against removal of the Exclusionary Rule from a criminal case. She reiterated that if the victim is not a witness they will not be excluded from proceedings. Ms. Brink expressed concern with section 13. Section 13 limits the court's ability to grant an order requiring a victim to undergo a psychiatric or psychological examination to cases where the victim's psychiatric condition is an element of the offense charged. She alleged that the bill 2 ignores the fact that people do not have perfect recall. She stated that witnesses may have conditions relating to their mental health that affect their ability to tell the truth or remember accurately. She stressed that there is already a burden on a criminal defendant to obtain an evaluation. She maintained that psychological examinations are rarely granted. She emphasized that due process requires that the jury be informed if there is a mental condition that affects the credibility of a witness. She stressed that the jury is the finder of fact. In response to a question by Representative Davies, Ms. Brink discussed section 18. Section 18 amends Alaska Evidence Rule 404(b) to allow, in the prosecution of a crime involving domestic violence or interfering with a report of domestic violence, evidence to be introduced that the defendant has committed other crimes involving domestic violence or interfering with the report of a crime involving domestic violence against the same or another victim. She emphasized that a person cannot be convicted because they are unlikable or have been bad in the past. The prosecution is required to prove that the person actually committed the crime in which they are charged. She noted that a person's prior misdeeds can be admissable under a broad variety of circumstances. If the misdeed is relative to prove intent or motive, opportunity, common plan or scheme, or lack of mistake or accident it is admissible. She maintained that this section has constitutional concerns. Co-Chair Therriault observed that section 18 is not limited to previous convictions. Co-Chair Therriault referred to section 8. Section 8 adds a new provision to the criminal code making it a class A misdemeanor to interfere with a person who is reporting or attempting to report a domestic violence crime to the police. These kinds of instances happen when someone who is a victim of domestic violence decides to report. Ms. Brink asserted that "interfere" is a broad word. She noted that there is no legal connotation. JAYNE ANDREEN, EXECUTIVE DIRECTOR, COUNCIL ON DOMESTIC VIOLENCE AND SEXUAL ASSAULT testified in support of the committee substitute. She observed that Alaskan voters passed a constitutional amendment supporting victims access to criminal proceedings. She stressed that the legislation goes a long way in ensuring that victims will have the access that they are granted by the state constitution. Ms. Andreen referred to section 7. Section 7 amends the definition of "incapacitated" in the sexual assault statutes. "Incapacitated" means that a victim was temporarily unable to appraise the nature of his or her 3 conduct, or that the victim was temporarily unable to express unwillingness to act. She expressed concern that the level of proof can be damaging to victims. She observed that someone who is developmentally delayed and may not know or be able to appraise the nature of the act, but is able to communicate a willingness or unwillingness, would not fit under the definition. Victims under the influence of the rape drug, rohypnol, would not fit the definition. Ms. Andreen discussed section 8, the crime of interfering with a person who is reporting or attempting to report a domestic violence crime to the police. She recounted that numerous victims have reported that they were prevented from making a report when the perpetrator ripped the phone out of the wall. She expressed concern that this relays a long term message that it is futile for the victim to try to do anything to protect themselves. Ms. Andreen observed that it is now mandatory in domestic violence cases for the court and corrections systems to look at and incorporate the safety needs of the victim. She emphasized that the legislation expands this to all victims of violent crimes. Ms. Andreen referred to section 13, psychological examinations of a victim. She observed that a psychological examination of the victim indicates to the victim that they are responsible or at fault, or could be held accountable for the fact that the crime occurred. Ms. Andreen observed that domestic violence is a cyclical offense. Domestic violence continues over a period of time and gradually escalates. She stressed that the State is working to develop a policy and process that is not as dependent on victims, to make or break a criminal case. Representative G. Davis suggested that in a case where a phone is pulled out of the wall that "it appears that the anger level is so high, would be so high, that this is really a small thing. It's like going into a jewelry store and robbing a whole box of watches, and on the way out grabbing a $.25 cent candy bar." Ms. Andreen replied that it is difficult to comprehend that domestic violence is unlike other crimes, in that you cannot take a single episode or incident and break it down. The on-going erosion of a person's ability to be responsible for themselves must be considered. Co-Chair Therriault referred to section 8. He expressed concern that "interfering" is a little "wide open". Representative Kelly noted that AS 18.66.990 is cited on 4 page 3, line 20. He expressed concern that federal laws that remove the right to keep and bear arms if a person is associated with the crime of domestic violence could apply. He stated that "some of the definitions they have on domestic violence are pretty absurd to give up a constitutional right." He maintained that because definitions of "domestic violence" under AS 18.66.990 collaterally references "harassment" that a person could lose the right to keep and bear arms because they have insulted, taunted or challenged someone to provoke an immediate, violent response. He did not feel that the provision should be in the legislation. He expressed concern that the provision is too broad. Representative Grussendorf questioned if there have been situations where an in-law, trying to promote harmony, has prevented a woman from filing a report. Ms. Andreen noted that in-laws may provide emotional pressure to the victim to not report. She recounted two instances where brothers of the alleged perpetrator applied physical pressure to prevent a victim from reporting. Representative Kelly reiterated his questions regarding references to the definition of domestic violence in AS 18.66.990. He maintained that this "is a fairly weak crime to go ahead and include in this list, which could end up causing one to lose their constitutional right to keep and bear arms." He pointed out that police and military forces are going to have family problems, and that they aren't going to have to do physical harm. All they are going to have to do, is insult, taunt or challenge in a manner likely to provoke an immediate violent response to be out of a job. He reiterated that it is a low threshold. DEAN GUANELI, CHIEF ASSISTANT ATTORNEY, DEPARTMENT OF LAW clarified that the portions of the state harassment statute that are incorporated within the definition of domestic violence are fairly narrow. References include telephoning, making repeated telephone calls, and making anonymous obscene calls. He stressed that the federal prohibition from carrying a fire arm would not automatically be invoked. He stated that the federal prohibition refers to domestic violence that involves using physical force or a weapon against a person. The federal law would only be triggered if the state conviction contains those elements. Representative Davies reiterated that a person must be convicted under the state statute for federal prohibitions to take effect. Mr. Guaneli clarified that the physical restraint of a person could form the basis for an assault charge under state statute. He acknowledged that a conviction pertaining to a single instance of physical 5 restraint is rare. Representative Grussendorf noted that the legislation refers to the "alleged victim". Mr. Guaneli observed that the language acknowledges that there is an assumption of innocence until guilt is proven. Co-Chair Hanley referred to section 8. He asked the definition of "interfering". Mr. Guaneli pointed out that the perpetrator has to know that they are interfering with someone that is reporting or attempting to report a crime to a law enforcement agency. He emphasized that the jury is left to decide if there is actual interference. He observed that the provision is similar to statutes pertaining to interfering with or resisting an arrest by a law enforcement agency. He noted that this law has been on the books without specific definition of "interference". He clarified that the perpetrator must know that they are interfering and that they must have some suspicion that the woman was attempting to report to a law enforcement agency for a conviction to occur. He emphasized that the most common occurrence is the phone being removed while a victim is attempting to call 911 or telling a child to call 911, or during an actual call to 911. He summarized that it is a more aggravated offense that is reflected by an additional charge. In response to a question by Co-Chair Hanley, Mr. Guaneli discussed section 18. He agreed that "the law, as expressed in this rule of court, wants to base a conviction on the conduct that occurred at that particular instance". There are exceptions where prior bad conduct can also come into evidence as a way of explaining or putting into context what happen on that particular instance. The change reflects that domestic violence is the type of thing that happens over and over again, and tends to escalate in violence. He observed that the Legislature has amended this statute to allow into evidence prior child sexual abuse. He noted that there is a similarity in the offense patterns of child sexual abuse and domestic violence. He did not think that the provision would be found unconstitutional. Representative Davies asked why the back pattern cannot be allowed under existing law. (Tape Change, HFC 97-31, Side 2) Mr. Guaneli noted that different judges apply the rule in different ways. The specific exceptions under this rule to allow in prior bad acts are applied very literally by some judges. 6 Representative Grussendorf summarized that a pattern of physical abuse as demonstrated by doctor records would be admissable. Mr. Guaneli agreed and added that evidence from the victim that the abuse has happened on previous occasions could be admissible. Co-Chair Therriault observed that prior evidence, not just convictions, would be admissible. He suggested that the evidence is being presented as fact. Mr. Guaneli agreed that the evidence is brought in as fact. He stressed that the jury must decide how the evidence relates to the new event. Judges generally instruct juries to consider the prior evidence, not merely for the fact that the person is a bad person, but in order to help explain why something occurred on another occasion. He maintained that the restriction to prior convictions would defeat one of the purposes of the provision. He noted that domestic violence often is not reported until well into the cycle of violence. The action of the abuser has discouraged the victim from reporting to the police. In response to a question by Co-Chair Hanley, Mr. Guaneli discussed the Exclusionary Rule. He agreed that actual fact finding is needed in any judicial system. He maintained that the current practice of automatic exclusion of every witness, including every victim, goes beyond what is necessary to assure accurate fact finding. He stressed that there must be a balance between the rights of the accused and the victim. He observed that there is now a constitutional right that gives victims the right to be in the courtroom every time that the defendant is present. He stressed that victims of certain types of crimes feel that they are victimized by the proceedings in the court room. They feel that they are being attacked by the arguments that are being made. Their conduct and credibility are being attacked. Most victims feel that they have a right to be present when they are being attacked. He emphasized that the judge continues to have the right to exclude someone from the court room if their presence will prejudice the jury or the accused's rights. He maintained that there ought to be a factual basis for the exclusion. Representative Kelly expressed concern that defendants may accept the charge of domestic violence because they do not have money to fight the charge. He reiterated concerns relating to the collateral reference to "harassment". Representative Porter pointed out that all defendants are provided counsel by the State if they cannot afford private representation. He spoke against changing the fundamental definition of domestic violence. He emphasized that the scope of "harassment" is a very narrow application within 7 the domestic violence definition. Representative Davies referred to section 13. Mr. Guaneli disagreed that section 13 would present constitutional concerns. He observed that the defense commonly challenges the victim's credibility through the use of psychological examinations by expert witnesses. He agreed that a mental exam would be appropriate if the victim's mental condition is a direct element of the defense. He observed that polygraph evidence is not allowed. Representative Davies questioned if instructions from the court that mental examinations cannot be for the purpose of harassment or embarrassment have been effective in preventing abuse. Mr. Guaneli replied that the standard has been low. He did not think that the current standards are adequate to protect against abuse. Representative Davies quoted Ms. Brink as saying that the Court of Appeals has cautioned that, "care must be taken to assure that requests for evaluation will in fact yield relevant evidence." Mr. Guaneli expressed belief that a number of judges have found it easier to approve the order for an exam. When the case goes to trial the judge decides if the evidence will be allowed. He pointed out that by trial time the harm has been done. "The victim has been revictimized." Co-Chair Hanley MOVED to adopt Work Draft #O-LS008\H, dated 2/12/97 (copy on file). There being NO OBJECTION, it was so ordered. Representative Davies provided members with Amendment 1 (copy on file). OBJECTED for purposes of discussion. Representative Davies explained that Amendment 1 would amend the Exclusionary Rule. He maintained that the amendment would balance the rights of the victim and the defendant. The amendment would allow the victim to be present unless; "(i) the testimony concerns the subject about which the victim is expected to testify; and (ii) the victim is likely to be called as a witness and has not, at the time of the testimony, testified." He spoke in support of Amendment 1. Representative Porter spoke against the amendment. He disagreed that the amendment would balance the rights of the victim and defendant. He observed that the defendant may stay throughout the trial even though they are about to testify, but the victim cannot. He reiterated that victims should receive the same rights as defendants. In response to a question by Representative Grussendorf, Representative Porter noted that the wording of the 8 constitutional amendment states that "crime victims as defined by law, shall have the following rights as provided by law". Some judges have interpreted this to mean that if the specific enumeration is not provided in the statute it is not provided by law. Mr. Guaneli added that the Exclusionary Rule has been a court rule for a long time and a lot of judges are use to operating in this manner. The legislation will implement changes provided by the constitutional amendment. In response to a question by Representative Davies, Mr. Guaneli emphasized that the judge always has the power and obligation to take whatever steps are necessary to assure a fair trial. A roll call vote was taken on the MOTION. IN FAVOR: Davies, Grussendorf, Moses OPPOSED: Davis, Kelly, Kohring, Martin, Mulder, Hanley, Therriault Representative Foster was absent from the vote. Representative Mulder MOVED to report CSHB 9 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. There being NO OBJECTION, it was so ordered. CSHB 9 (FIN) was reported out of Committee with a "do pass" recommendation and with a fiscal impact note by the Department of Administration; and with five zero fiscal notes, one by the Department of Law, one by the Department of Administration, one by the Department of Public Safety (dated 1/27/97), one by the Alaska Court System (dated 1/27/97), and one by the Department of Health & Social Services (dated 1/27/97).