HJUD - 1/25/95 HB 26 - DEPOSITIONS IN CRIMINAL CASES CHAIRMAN PORTER then announced HB 26 would be the next bill before the committee. REPRESENTATIVE VEZEY left early. Number 725 REPRESENTATIVE TOOHEY asked if she could make a motion to make Version C the committee's work draft. Number 730 CHAIRMAN PORTER asked if there was objection. Hearing none, the committee substitute was adopted. REPRESENTATIVE PARNELL, sponsor of the bill, came before the committee. He said under the current rule 15, the court can order depositions in a criminal case upon good cause being shown. That is a weak standard and permits the taking of numerous depositions in cases where the victim can be subjected to harassment of the defense. It is ripe for abuse, at that point. He read part of a speech by Ed McNally to sum up his reason for proposing the bill: The Alaska Rule 15 is far more liberal (referring to the federal rule 15), permitting a deposition of any victim or witness whenever good cause is shown. In the practice of the criminal courts in Alaska, Alaska Criminal Rule 15 has become a tool of aggressive harassment of witnesses, victims, and especially rape victims in criminal cases. The Victims Rights Act says that in advance of trial, rape victims do not have to talk to the lawyer for the man who raped them. Within Alaska, Criminal Rule 15 is routinely used by defense counsel to obtain a court order requiring rape victims to submit to a grueling and formal deposition with them. Under the Federal Rule 15, it says that depositions can be taken only under exceptional circumstances, rather than "good cause shown" standards. His first draft of the bill was strictly the federal rule. After discussions with the Department of Law, he backed off from that and submitted the committee substitute, Version C, which provides a standard very similar to the federal rule with respect to this special circumstances test. In the first portion, it says that the deposition of a prospective witness may be taken by either party upon notice as provided in B of this rule; if the court finds by clear and convincing evidence that, one, the witness will not be present to testify at trial, or two, due to exceptional circumstances, the deposition is necessary to prevent a failure of justice. Essentially, what we are doing at the Department of Law's suggestion, is changing a portion of the Alaska rule. We are not throwing out the entire rule and all the cases that have come in under the rule. We are just changing the standard under which depositions can be taken. REPRESENTATIVE PARNELL went on to say that on page 2 of the work draft, Section 2 changes the rule so that courts will preside over depositions as well. This is done to give them some measure of control over the proceedings. In short, changing the wording of the Alaska rule to be parallel to the federal rule, is a warranted change, given the current use of depositions and abuse of depositions. He urged the committee's support of HB 26. Number 790 CHAIRMAN PORTER asked if there were questions of the sponsor. Hearing none, he then requested Mr. Guaneli to come forward to testify. Number 795 MR. GUANELI, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, stated that often times in a criminal case, a rape victim has given a statement to doctors at the hospital, has given a statement to the police which is recorded and transcribed, has given a statement to the Grand Jury, which is recorded and transcribed, and all that information goes to the defense. Many times, if the defense can in some way find out the victim is not going to cooperate, or does not want to testify, the case may simply go away. Mr. Guaneli made it clear that he was not suggesting that defense attorneys ask for depositions to intentionally intimidate victims, but that is the effect of it. Getting in a small enclosed room, sitting across from the man who raped you is a terrifying experience. There is no judge present, there is just a court reporter who has another tape recorder going, and that statement is then recorded and transcribed. Throughout each of these statements, subtle details of the defense may change. Every time there is an additional statement taken, it is additional evidence that can be used against the victim as cross examination material. MR. GUANELI went on to say that in criminal cases, unlike civil cases, the defense already gets a large amount of material to know about the prosecution's case. For that reason, historically, depositions have not occurred in criminal cases. Unfortunately, some judges in Alaska, not all of them by any means, but some, have been very loose about allowing depositions in criminal cases, particularly in rape cases. This bill is intended to clamp down on that practice. If there is a good reason why a deposition ought to be taken, if the witness is dying or is going to be leaving the state, or if there are exceptional circumstances, but for it to be a routine practice seems inappropriate. MR. GUANELI said the other change occurs on page 2, Section 2. This bill says that if a judge is going to order a deposition, let the judge preside over that deposition. It should be done in a courtroom, in a closed proceeding with a measure of decorum, so the judge can protect that witness against an aggressive cross examination. In a criminal case, the prosecutor is not really the victim's lawyer. Victims often do not have the money to go out and hire a lawyer to protect them. In a normal deposition, the other attorney can raise legal objections, but the witness has to answer the questions. It is a good and helpful procedure to have the judge preside over that, in the rare circumstance that it should be necessary. Number 843 REPRESENTATIVE BUNDE asked if we would end up with a bottleneck, just because we do not have enough courtrooms available. Number 845 MR. GUANELI said it depends on how many of these are ordered by the judges, but he thought this should be a rare occurrence. It does not take up a lot of court time. It may advance the course of litigation, rather than delaying things. Number 849 REPRESENTATIVE FINKELSTEIN was not clear on the necessity of this kind of approach. The impression he had from talking with defense attorneys is that these depositions are not granted often in the first place. TAPE 95-2, SIDE A Number 000 REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli if he has actually seen a large number of these cases. MR. GUANELI noted that it is not all judges, it is just certain judges in certain areas of the state. In many areas of the state, it is a rare occurrence and this will not change that, but in those areas of the state where for one reason or another the judge is applying a looser standard, and with language such as "for good cause," and good cause is a pretty low standard, and it depends to a large extent on the judge's own subjective view about what that is. That can be used more than it should in some areas, so it varies by region and by judge. Number 017 REPRESENTATIVE FINKELSTEIN asked Mr. Guaneli if he was aware of circumstances where there are more than a handful of these depositions occurring, whether it is five or ten in a year or something like that. Number 021 MR. GUANELI said that was correct. Number 022 CHAIRMAN PORTER noted the inclusion of Section 2, page 2, which says that the court shall preside over a deposition, and orders under (a). The rule goes on to say that parties can agree on some other form of deposition. He had an amendment prepared, if Mr. Guaneli felt there would be any kind of problem there, that would say, "nor does it preclude depositions taken or used under (g) of this rule." Number 024 MR. GUANELI said there are cases where the victim is not going to be the witness in the deposition. It may be perfectly appropriate to have it be a simple matter of agreeing whether it is going to be in front of a court reporter or in a room off somewhere, and you tape your testimony. Number 031 CHAIRMAN PORTER said his question is whether or not this can happen under this current wording of the bill. Number 036 MR. GUANELI said that no, he was satisfied. Number 040 REPRESENTATIVE BUNDE moved that CSHB 26 (JUD) be passed from the Judiciary Committee, with individual recommendations. Number 045 CHAIRMAN PORTER added, and fiscal notes as attached. Hearing no objection, the bill was moved.