SJUD - 3/8/95 HB 26 DEPOSITIONS IN CRIMINAL CASES  REPRESENTATIVE PARNELL, sponsor of HB 26, explained under current law, a motion must be filed with the court to take a deposition of another person in criminal cases. In practice, this provides another attempt to interview witnesses and victims, particularly victims of sexual assault, and provide another opportunity for harassment of those victims. In most cases, the victim has already given a tape recorded statement to the police, as well as a tape recorded and transcribed statement to the grand jury, both of which are available to the defense. CSHB 26(Jud) attempts to incorporate portions of the federal court rule which states that depositions in criminal cases can only be taken under exceptional circumstances or when the witness will be unavailable for trial. The exceptional circumstances test is in use in all 50 states and all federal courts. SENATOR ADAMS discussed a bill reviewed in committee last week which attempted to change Rule 16. The Supreme Court undertook a review of the court rule. He asked if a similar review had been undertaken on Rule 15. REPRESENTATIVE PARNELL commented that the court reviewed Rule 16 because it was a court committee recommendation, but he did not believe the same recommendations was made for Rule 15. MR. GUANELI confirmed that there was no court recommendation to review Rule 15. SENATOR ADAMS noted the phrase "clear and convincing evidence" on page 1, line 7, requires a higher standard of proof than the language "beyond a reasonable doubt." He questioned why a higher standard of proof would be used. REPRESENTATIVE PARNELL explained that the standard of proof "beyond a reasonable doubt" refers to the standard under which a person is convicted. The "clear and convincing evidence" standard relates to what must be shown upon this motion. CSHB 26(Jud) requires either party to show clear and convincing evidence that exceptional circumstances exist. This narrows the scope under which depositions can be taken. SENATOR TAYLOR asked if the Public Defender Agency is opposed to CSHB 26(Jud) and whether Mr. Guaneli was aware of abuses to Rule 15 in Alaska. MR. GUANELI stated there are specific judges in specific locations who grant depositions, particularly in rape cases, in almost every case. That kind of practice is limited but does occur and causes great concern to victims in those cases. He discussed the revictimization of the victim when they must make another deposition in front of the offender with no judge present. Defendants have the right to be present at all critical court proceedings. The American Bar Association (ABA) recommends that in criminal depositions, the offender not have a right to be present, but that does not hold in Alaska. He added the Public Defender Agency does not feel it would affect that many cases which is why they are not actively opposing the bill. SENATOR TAYLOR felt the lack of opposition speaks highly of the candor of the Public Defender Agency. SENATOR ELLIS asked how many victims are involved. MR. GUANELI believed 15 to 20 victims per year are affected. LAUREE HUGONIN stated ANDVSA supports CSHB 26(Jud). ANDVSA does not believe it places an undue burden on the defense and it will protect victims that already make their testimony available in several ways. She urged the committee's support of CSHB 26(Jud). SENATOR GREEN moved CSHB 26(Jud) out of committee with individual recommendations. There being no objection, the motion carried.