HOUSE BILL NO. 244 "An Act relating to the Code of Criminal Procedure; relating to defenses, affirmative defenses, and justifications to certain criminal acts; relating to rights of prisoners after arrest; relating to discovery, immunity from prosecution, notice of defenses, admissibility of certain evidence, and right to representation in criminal proceedings; relating to sentencing, probation, and discretionary parole; amending Rule 16, Alaska Rules of Criminal Procedure, and Rules 404, 412, 609, and 803, Alaska Rules of Evidence; and providing for an effective date." Vice-Chair Meyer MOVED Amendment #1: work draft 23 GH1024|D.1, dated 5/14/03. Representative Berkowitz OBJECTED. ANNE CARPENETI, ASSISTANT ATTORNEY GENERAL, LEGAL SERVICES SECTION, CRIMINAL DIVISION, DEPARTMENT OF LAW discussed changes proposed by the amendment. She noted that Amendment 1 would change defense for "heat of passion" charges from a defense that the state is obliged to disprove beyond a reasonable doubt to an affirmable defense, which the person claiming the defense is obliged to prove by a preponderance of evidence. "Heat of passion" only applies to murder in the first degree and murder in the second degree, and only works to reduce the charge to manslaughter. Under "heat of passion" a person claims that they acted in such excitement aroused by the intended victim that they were unable to prevent the crime. The claim is that a homicide occurred during a situation beyond one's control. It is similar to temporary insanity. The person committing the crime is unable to control him or herself, and thus feels that they should be charged with manslaughter rather than murder. She noted that in Alaska, insanity is an affirmative defense, which the defendant has to prove through a preponderance of the evidence. She spoke in support of the shift. Representative Berkowitz pointed out that the presumption of innocence and burden of proof are the two essential precepts in any trial. He maintained that the amendment would turn these precepts on their head. He maintained that the amendment overturns this premise and spoke against it. Vice-Chair Meyer asked if the "heat of passion" placed these cases in the same vein as an insanity case. Representative Berkowitz explained that there are two parts of doing something illegal; there needs to be a guilty mind and a guilty act. When there is an insanity defense the guilty act is conceded. An insanity situation is distinct from a "heat of passion" defense. He noted that the State would have prior knowledge of a "heat of passion" defense and should be able to prove its case. Vice-Chair Meyer maintained that a defendant should be required to prove that they were irrational in the heat of passion. In response to a question by Representative Kerttula, Ms. Carpenti confirmed that "heat of passion" is not equivalent to insanity. Representative Kerttula asked if the burden of proof remained the same. Ms. Carpenti noted that the change would be to an affirmative defense. She noted that other things, such as duress, support an affirmative defense, since the defendant is in a better position to provide information about the situation. Representative Kerttula pointed out that if the defense had not been raised, then it would not have been the same burden on the defendant. Ms. Carpenti noted the State is currently obliged to disprove it beyond a reasonable doubt. The amendment would require the defendant to prove it by preponderance of evidence and the charge would be reduced to manslaughter. In response to a question by Representative Whitaker, Ms. Carpenti noted that a defense places the burden on the State to prove the guilt of a defendant, whereas an affirmative defense places the burden of proof on the defendant. Representative Whitaker observed that it amounted to a case of life and death and stated that he was uncomfortable with an amendment of this magnitude being heard in these conditions. Representative Foster observed that he had experienced the weight of the government under indictment. He asserted that most citizens couldn't afford to defend themselves. HB 244 was heard and HELD in Committee for further consideration.