HB 9 VICTIM'S RIGHT TO BE PRESENT AT TRIAL  JIM SOURANT , legislative assistant to Representative Porter, sponsor of the measure, and ANNE CARPENETI , Assistant Attorney General, Department of Law (DOL) took the witness stand. Mr. Sourant noted Janice Lienhart, the recipient of the National Crime Victim Service Award, was available to testify from Anchorage via teleconference and commented on her outstanding service in the area of crime victims' rights in the State of Alaska. He then explained HB 9 is the statutory realization of a constitutional amendment adopted two years ago. Article 1, Section 24, of that amendment contains a list of the rights of crime victims to ensure that those rights are elevated to at least that of criminal defendants. The part of HB 9 that is most relevant to the constitutional amendment is the idea that crime victims have the right to be in the courtroom at all times that the criminal defendant, or juvenile if a juvenile proceeding, has the right to be in the courtroom - notwithstanding the fact that the victim may be later called upon as a witness. Sections 1 and 2 modify Alaska Evidence Rule 615, the exclusionary rule, and recognize the right of a crime victim to be in a courtroom at any time the criminal defendant is present. The State of New Hampshire has modified its equivalent of Alaska Evidence Rule 615 without a constitutional amendment. That modification was upheld by the New Hampshire Supreme Court. In March, 1997 Congress enacted the Victims' Rights Clarification Act of 1997. That bill is consistent with HB 9 regarding a victim's right to be present in the courtroom, and is retroactive so that the victims of the Oklahoma City bombing can be present during that trial. He asked Ms. Carpeneti to comment on the other substantive provisions of HB 9. Number 105 MS. CARPENETI commented that prior testimony in other committees on modification of the exclusionary rule has revealed concern about the possibility that the victim's testimony might be tainted after listening to other witness' testimony. She noted the victim's story has been previously recorded in several ways; by a description of events to police officers and in Grand Jury testimony so that it is on record before he/she testifies at a trial. The precaution against tainting testimony is not very strong in relation to constitutional requirement. MS. CARPENETI gave the following sectional analysis of the remainder of HB 9. Sections 3 through 6 deal with exemptions upon levy for assets that provide that a person's liquid assets and wages are free from being levied by creditors. Those sections exempt victims who have an order for restitution so that the levy can occur to fulfill restitution obligations. Section 7 makes a minor change in the definition of "incapacitated" in sexual assault statutes. To establish that the victim was incapacitated will require proof that the victim was unable to appraise the nature of the act or was physically unable to express unwillingness. Ms. Carpeneti thought that it should be clear that the State has to prove one or the other, but not both. Section 8 creates a class A misdemeanor for interfering with the report of the crime of domestic violence. Often, in domestic violence cases, a phone is pulled out of the wall to prevent the victim from calling police. That action escalates the danger of the situation and makes the victim unable to communicate with anyone who might help. Sections 9 through 12 bring Alaska's bail statutes into line with current court practice and constitutional requirements. Judges are now considering the safety of the victims when ordering bail or setting conditions of release. Section 13 limits the situations where the court can order a mental examination of the victim at the request of the defendant. Mental examinations of victims should be ordered in very rare circumstances because it is such an invasion of one's dignity. Last year the Legislature passed laws which limited the ability of representatives of the defense team to contact the victim. DOL's Special Prosecutions Office attorneys thought about situations in which a victim's mental examination might be relevant and those situations are excepted, otherwise Section 13 provides that a psychiatric examination should not be ordered. Section 4 amends the three-judge panel statute. In Alaska's sentencing laws, a three-judge panel is available to a defendant or the State if, in certain circumstances, the presumptive sentence does not fit the particular case. The three-judge panel has more power than a sentencing court when a presumptive sentence is required by statute. Section 4 provides that if the panel supplements the record by taking testimony from the defendant, the victim may also testify. Section 15 amends the section dealing with crime victims' rights and brings notice requirements from other titles into Title 12 so that most of the rights to notice are located in one title. Section 16 provides that an application for compensation from the Violent Crimes Compensation Board (VCCB) and supporting data is confidential. That is the current practice but sometimes the Board has to defend a subpoena or request and has asked that the statute clarify that the information is not public. Section 17 deals with the right to be present at trial. Section 18 provides that a victim may testify telephonically before a Grand Jury under the same circumstances that other witnesses are allowed to testify telephonically. Section 19 amends the rules of evidence to allow the use of evidence of prior acts of domestic violence in the prosecution of a case. The reason for this change is that frequently domestic violence cases are prosecuted without a witness to the offense. The victim may have recanted or refused to cooperate out of fear, or for many other reasons. More often, the police officer who was at the scene testifies to what occurred. Ms. Carpeneti concluded the sectional analysis by saying the remaining provisions deal with the exclusionary rule of witnesses as they relate to victims. MS. CARPENETI stated DOL has suggested an amendment to Representative Porter who agrees to it if the committee will consider it at this point. The amendment provides specifically that in a case where an indictment is dismissed by the Trial Court and the State intends to, or does, appeal the dismissal, that the release of the defendant be according to the rules of pre-trial release. Recently an order by the Supreme Court unconditionally released a defendant after an indictment had been dismissed by the Superior Court and the State appealed the dismissal with the Court of Appeals. This same procedure using pre-trial release rules is used by the federal court system. Number 245 SENATOR PARNELL noted Section 19, regarding admissibility of evidence in domestic violence cases, amends Evidence Rule 404. He asked whether evidence of prior crimes is admissible in any other circumstances. MS. CARPENETI said there are other circumstances where prior bad acts are admissible to establish the State's case, for example sexual abuse of a minor under certain circumstances. The general rule is one cannot use prior bad acts to establish propensity to prove the person acted in accordance with how he/she behaved in the past, but there are a number of exceptions. SENATOR PARNELL asked if this evidence would be used to prove one's guilt at this time, and whether it could be used to secure applications for restraining orders. He questioned whether it applies strictly to convictions of crimes involving domestic violence. MS. CARPENETI answered the State would have to make a preliminary showing to the Court that the information was still relevant; the evidence could not automatically be introduced. SENATOR PARNELL asked if, in the area of sexual abuse, and evidence of sexual abuse, is the wording in 404 evidence of sexual abuse or is it evidence of conviction. MS. CARPENETI thought it was evidence of prior bad acts. SENATOR PARNELL questioned whether a court order can override Section 16, regarding the confidentiality of records before the VCCB. MS. CARPENETI answered that provision was added to the bill because records have been subpoenaed and the State has to litigate. She thought under certain circumstances one could ask the court because there might be reasons unrelated to this specific issue, but generally, the records should be kept confidential. SENATOR PARNELL asked about the current problem. MS. CARPENETI said people are asking for subpoenas and DOL has to fight the request. DOL has won every time so far. SENATOR PARNELL asked if the intent of the sponsor is that a court order could override this provision in certain circumstances. MS. CARPENETI said she would have to know what circumstances because the provision is clear the records are confidential. SENATOR PARNELL asked why, as a policy matter, we would want to never allow those records to be reviewed. MS. CARPENETI replied the applications contain medical records and personal information from victims. SENATOR PARNELL asked if there is ever a time when the State ends up in a civil proceeding between the two and the evidence is necessary for impeachment purposes for the victim. MS. CARPENETI stated she is not familiar with any such situations, and does not believe any have arisen. SENATOR PARNELL clarified he understands the importance of protecting the information, but is trying to understand the intent with respect to the scope of the protection. MS. CARPENETI answered the intent is to avoid litigating every time someone asks for the records. When people ask for a subpoena, DOL opposes the motion and has prevailed, but DOL wants to avoid litigating every time someone wants to get the records. She agreed this provision would supersede the court's decision. Number 326 PAUL SWEET testified via teleconference from Mat-Su in opposition to HB 9. He asked whether a victim will be able to testify at an appeals case in which the defense is arguing that the sentence was too stiff. MS. CARPENETI clarified when a person appeals a sentence, the Court of Appeals makes the decision based on the record before it; it does not take more testimony from anyone. Both the State and the defendant present their respective positions. In such cases, the State designates, as part of the record on appeal, any statement that the victim has made in terms of the sentence given to the Court prior to the presentence report so the victim's point of view regarding the appropriate sentence is on the record in every case. CHAIRMAN TAYLOR added the Appellate Court should be able to do one of three things: either affirm the sentence handed down by the judge, reduce the sentence, or increase it. If an increase was a possibility, many specious appeals would not occur. MR. SWEET commented that every time the perpetrator has a right to appeal, the victim should have the same right. Number 364 CONNIE TROMBLE testified via teleconference from Bethel and noted her support for HB 9. JANICE LIENHART testified via teleconference from Anchorage in support of HB 9 and made the following remarks. The intent of the constitutional amendment is to allow victims to attend all hearings that the defendant can attend because the victim is kept from so much information from the first point of prosecution: the police cannot give any information until the trial. When a victim is not allowed to attend the hearing, he/she does not get answers or closure. She believes victims will be as honest as they can because they want to see justice served. HB 9 will put teeth in the constitutional amendment and positively impact families who now have to live through the nightmare of having no information about the criminal justice process and are unable to participate. She noted she has been trying to help a woman in Texas who witnessed the murder of her daughter. Because this woman was a witness she is not allowed to attend the trial which is very difficult for her. Number 392 LINDA THOMAS , an attorney with Rex Lamont Butler & Associates in Anchorage, testified in opposition to the provisions that eliminate the exclusionary rule. One of the most important tools to protect innocent persons wrongfully accused from being wrongfully convicted is the tool of cross-examination: it is fundamental to a defendant's Sixth Amendment right to confront witnesses, and to effective assistance of counsel. This is especially true in sexual assault and domestic violence cases where the primary evidence is the complainant's identification or an accuser's testimony and the only defense may be impeachment through cross-examination. Elimination of the exclusionary rule will weaken that tool and it eviscerates fundamental constitutional rights designed to protect those accused of crimes. For whatever reason, we know that there are some people who falsely accuse others, sometimes when relationships are ending they use it as a means to seek financial leverage or power in a custody dispute, or maybe out of revenge to a lover or even as an alibi for their own sexual conduct, for example sometimes in teenagers' unwanted pregnancies. If a false accuser is allowed to stay in the courtroom, he or she is given an opportunity to hear all other testimony and they can clean up any inconsistencies in their testimony which might have been revealed on cross examination. If a false accuser is permitted in a courtroom, they get an opportunity to dot their i's and cross the t's on all their lies. According to Linda Farenstein [ph], former New York District Attorney and director of Manhattan's Sex Crimes Prosecution Unit, who for 20 years put sex offenders away, found that 60 percent of child sex abuse allegations against men were false and 50 percent of all rape allegations were false. The final analysis of a United States Air Force study in 1985 found 60 percent of the original rape claims to be false. In two reports in Canada, 50 percent of child sex abuse allegations were found to be false with the figure climbing to 70 percent when a custody fight was raging. With regard to how this plays out in sexual assault cases and domestic violence cases in Alaska, we are finding that if a complainant makes a false allegation of sexual assault, and later tries to recant, many prosecutors are not permitting the recantation, instead, in a rather neo-paternalistic way, they hire expert witnesses to testify that the recantation is evidence of a cycle of abuse. There is an underlying premise that men abuse women unless proven otherwise. The obvious conclusion is that the State does not believe there is any such thing as a false allegation, yet for eight consecutive years since 1989, the FBI, through DNA testing, found that 25 percent of the sexual assault cases ready to go to trial were based on false accusations. In a research report by the Department of Justice, called Convicted by Juries, Exonerated by Science, 28 cases were studied, where men were later exonerated by DNA test results. Most had been convicted based primarily on victim identification. In the first case a woman was seeking an alibi for her teenage pregnancy. These men, convicted on false accusations, faced sentences ranging from eight years to the death penalty and served an average of 12 years in jail. Every man is vulnerable to false accusations and if it happens in this State, the defendant needs to defend against the State's theories of domestic violence and recantation, against its resources, and will have to rely on the cross examination of a complainant. If HB 9 passes, it will permit the accuser to hear all of the testimony. She urged the committee not to eliminate the exclusionary rule, and to keep the hysteria in check. Number 457 ROBERT BUTTCANE , Division of Family and Youth Services (DFYS), Department of Health and Social Services, testified in favor of HB 9, and specifically to Section 17. DFYS has found that allowing victims greater access to the juvenile justice system has been a very effective rehabilitative tool. JAYNE ANDREEN , Director of the Council on Domestic Violence and Sexual Assault (CDVSA), testified in support of HB 9. In response to Senator Parnell's questions about the Violent Crimes Compensation Board, she noted it is her understanding that the records obtained by VCCB as part of the compensation process are protected under federal guidelines in the Victims' of Crime Act. Section 16 brings Alaska statute into compliance with that Act and will reduce the number of subpoenas that the VCCB and DOL have to deal with. Number 471 SENATOR PEARCE asked Ms. Andreen to respond to Ms. Thomas' testimony. MS. ANDREEN said she was not aware of all of the studies Ms. Thomas cited, however she is aware of the U.S. Air Force report which determined that 65 percent of sexual assault victims lie or make false accusations. That report was based on a checklist used to determine the victim's credibility and looked at their social backgrounds, economic status and employment histories. Ms. Andreen noted as a former victim of sexual assault, she took the test which determined she was lying. Consequently, she does not place any value in that report, whatsoever. In addition, FBI data continues to show that sexual assault reports do not have a higher false reporting rate than any other violent crime. Number 484 CHAIRMAN TAYLOR advised that DHSS has distributed consistent reports concerning allegations of child sexual abuse or physical abuse, and continued reports from the Bar Association and others that deal with family law matters, show the extensive use of false accusations as a leverage tool in divorce actions. MS. ANDREEN responded that in her 11 years as a victim service advocate and service provider she is aware of those concerns, but has found that in dealing with child sexual abuse cases and the mothers of the children, more often than not the advocates file reports rather than the mothers. She noted she is aware of a small number of cases in which the service provider felt the mother was overreacting. Number 493 BARBARA BRINK , Acting Director of the Public Defender Agency, stated that no victims' rights are truly enhanced when the fact- finding process is made less accurate. She expressed concern that some of the provisions in HB 9, particularly Section 13 which bans psychiatric evaluations and the provision that allows the victim's presence at all stages of the proceeding, will affect the jury's ability to get the information it needs to assess a case in a fair manner. The exclusionary rule simply says the judge may exclude a victim who also witnessed the events to ensure that victim's testimony is preserved as accurately as possible. For many victims the exclusionary rule does not apply. Victims can attend every part of the proceeding as long as they were not attendant at the event that the jury is trying to put back together after the fact. Second, a victim's role in a case is different than other parties'. The State is a party because it can obtain a conviction and is responsible for enforcing society's mores. It has something to gain or lose. The defendant is a party because the individual's liberty is at stake. Although the victim has an interest and the desire to understand what is going on, and a desire to not have things happen in secrecy, the victim is not a stakeholder because he/she does not have something to lose such as life or liberty. The fact that the victim is a witness is more important than his/her role as a victim. The fact that they observed and perceived, and have the ability to recall what happened, is their most important role. The exclusionary rule allows a judge to preserve that as truthfully as possible. Ms. Brink said unlike Ms. Thomas who is concerned about people who create false allegations and give false testimony, she is concerned about those witnesses who have no axe to grind, who are simply there to testify and tell the truth. The ability to hear what other witnesses say about what happened affects them in a very subconscious and difficult to ascertain fashion. The human brain is not like a videotape or audiotape, it does not record things 100 percent, so the legal system tries to preserve recollections and not taint them. Even though witnesses have given statements in the past, and might have testified in front of a Grand Jury, that is not what the jury is listening to; the jury is trying to assess how accurate the witness' memory is based on their testimony. Ms. Brink repeated she is concerned about those witnesses who are honestly trying their best to recall events accurately and does not believe another hurdle should be thrown in their path. It will give the jury another piece of the puzzle to assess: how much of the testimony is because of what the victim heard other witnesses say. She discussed a recent Scientific American television program on human memory which compared verbal accounts of an event before and after seeing a photograph. The accounts, after seeing the photograph changed substantially and demonstrated that every person's memory was impacted by what was seen in the photograph. That is why police interview people who witnessed an accident individually. The exclusionary rule is simply a tool that recognizes how the brain works and applies that knowledge in the courtroom setting. Ms. Brink disagreed with previous testimony about the new federal rule and how it applies to the Oklahoma City bombing case. The new rule only refers to witnesses who are going to testify at the penalty phase; it does not give the green light to those witnesses who are trying to put the events together. She urged the committee to not adopt the change to the exclusionary provision and added that a prosecutor can eliminate the whole problem by calling a witness to testify first in the proceeding. Ms. Brink discussed the psychiatric evaluation prohibition in Section 13 and agreed 100 percent with Ms. Carpeneti that psychiatric evaluations of victims should only be done in the rarest of circumstances, as is current practice. Right now, as a criminal defense lawyer, in order to get a psychiatric evaluation she must prove to the judge two things: first that the victim, who is claiming the event happened, has a definite psychological or psychiatric condition that is directly related to his/her ability to tell the truth, and second that the victim's testimony is not corroborated by anything or is otherwise untrustworthy. It is only in the rarest of rare circumstances that such an examination is allowed. Even the Court of Appeals has stated it is not going to let anyone abuse this process. Everyone has to meet that very difficult standard to prove the examination will yield relevant evidence and not harass the victim. She recounted the following case. A man was accused of sexual assault and admitted that he had engaged in the alleged sexual conduct which he thought was consensual. The victim, who said it was forced, had a psychiatric history. She was psychotic and when she did not take medication, heard voices and said she was directed to do things by people who did not exist. Her ability to recall and perceive the events in question was very suspect. She had made false accusations of people in the past, including a Supreme Court Justice. Under this rule, the jury will not hear any of that and will have to decide whether the accusation is true without knowing what the accuser's true state of memory is. Number 562 SENATOR PARNELL asked how often a mental examination of the victim is requested by the defense in a sexual assault case. MS. BRINK said in her nine years of trying cases, she has requested two examinations and was denied both times. She said she was aware of a request granted in a Fairbanks case and in the case she just described. CHAIRMAN TAYLOR asked if AS 11.41 is the rape statute. MS. BRINK replied AS 11.41.400 pertains to sexual assault; AS 11.41 covers all crimes against people. CHAIRMAN TAYLOR stated he would entertain a motion to delete Section 13 regarding mental examinations. SENATOR PARNELL made the motion. There being no objection, Section 13 was deleted. Number 587 CHAIRMAN TAYLOR informed committee members there is a second amendment in committee members' packets, submitted by the sponsor, which pertains to release pending appeal, as explained by Ms. Carpeneti. There being no objection to the adoption of amendment SENATOR ELLIS asked for further elaboration on the change to the exclusionary rule. CHAIRMAN TAYLOR noted he is concerned about changing it and requested research on the subject which revealed nothing new. He said if an attorney has a weak witness, and a whole battery of strong witnesses, the attorney can put the strong witnesses on first and by the time the weak witness has watched them testify, he/she "learns the ropes" and becomes stronger. If the witness is not allowed to watch others testify, his/her strength on the witness stand will not change. TAPE 97-27, SIDE B SENATOR ELLIS asked if there is any reasonable way to find a middle ground to the exclusionary rule change or whether it is an all or nothing consideration. MS. CARPENETI responded it is unusual to even be discussing the exclusionary rule because the constitutional amendment on victims' rights that was adopted by a large percentage of the population mandates what HB 9 does. CHAIRMAN TAYLOR added that the public was sold the victims' rights amendment to the Constitution without much, if any, discussion or debate about the exclusionary rule. Discussion centered around victims' rights to restitution and to be informed, etc. He supported the amendment but after recently rereading it, he was surprised to find the number of aspects of victims' rights that were never discussed. He said he believes this aspect of the exclusionary rule has already been run roughshod by that vote, and at this point it is up to the Supreme Court to decide whether they are going to provide for that aspect of human nature that we all know to exist. MS. CARPENETI noted that although litigation may occur regarding the defendant's right to a fair trial, the Constitution now specifically provides that the victim has the right to be present. CHAIRMAN TAYLOR concluded he does not believe there is a way to find a middle ground at this point because the Constitution has already been amended. SENATOR PARNELL moved CSHB 9 (JUD) from committee with individual recommendations. There being no objection, the motion carried.