SB 188-CRIM PROCEDURE; CHANGE OF NAME  4:07:15 PM CHAIR SHOWER reconvened the meeting and announced the consideration of SENATE BILL NO. 188 "An Act relating to criminal law and procedure; relating to a petition for a change of name for certain persons; relating to procedures for bail; relating to consecutive sentencing for violation of condition of release; relating to the duty to register as a sex offender; amending Rules 6(r) and 47, Alaska Rules of Criminal Procedure; amending Rule 12, Alaska Delinquency Rules; amending Rule 84, Alaska Rules of Civil Procedure; and providing for an effective date." CHAIR SHOWER listed the individuals available to answer questions and asked Kaci Schroeder to introduce the bill. 4:08:41 PM KACI SCHROEDER, Assistant Attorney General, Criminal Division, Department of Law, Juneau, Alaska, stated that SB 188 does four things, and she would discuss them in the following order: 1) It deals with name changes for people involved in the criminal justice system; 2) It amends the bail statutes; 3) It amends the role of the grand jury regarding presenting hearsay at grand jury; and 4) It amends the Plain-Error Rule for cases that go on appeal. MS. SCHROEDER explained that SB 188 requires people under the jurisdiction of the Department of Corrections (DOC), to notify that department and the Department of Public Safety if they are required to register as a sex offender, and the Court System when they want to change their name. Currently neither department routinely receives this notice which makes it difficult to track these people and difficult for victims to track individuals as they move through the criminal justice system. The bill asks people who are not charged with a crime but want to change their name, to notify the Court System and identify the case so the court knows the person is involved in the criminal justice system. With this information and notification, the court will evaluate the request to change a name based on criteria that ensures the request is not made for a fraudulent purpose or to evade law enforcement. 4:10:29 PM MS. SCHROEDER explained that SB 188 changes the bail statutes in the following ways: • Defendants must give the prosecutor 48-hour notice when seeking a bail review hearing so the prosecutor can provide meaningful notice to victims who have a right to participate in bail hearings. • Judges are required to provide written findings for the bail and conditions they order. This will provide a written record, whereas the current process is to check a box and give the order orally, which is more difficult to track and may not be as clear as it would if it were in writing. • There is a rebuttable presumption that somebody who has violated conditions of release in the past, poses a risk to the victim or the community or that they won't appear. In the law, a rebuttable presumption is a strong suggestion from the legislature that something needs to change. It is not a presumption of no release; it is just that the person poses a risk and something needs to happen to address that risk. • Consecutive sentencing is addressed. When somebody violates their conditions of release, that can trigger a new criminal charge called violating conditions of release. The current system creates the potential for a revolving door of arrest, bail, release, violation of conditions, and the cycle repeats. This is a drain on resources and it jeopardizes public safety when someone is unwilling to comply with conditions. Sometimes the court will run the sentences concurrently when there is an underlying crime as well as several violations of conditions of release. SB 188 says that when that happens, there must be some additional sanction for each violation of conditions of release. 4:14:29 PM MS. SCHROEDER said the third thing SB 188 does is allow witnesses to summarize the testimony of other witnesses at grand jury, which is the charging phase of the case. The current process requires every witness to go to grand jury to offer their own testimony and this has to happen within 10 days after a person is arrested. This means that the victim who has already given their statement to law enforcement has to relive that event days later when they recount their story in a room full of strangers. SB 188 provides that, at the prosecutor's discretion and based on the case, one person or a couple may go to grand jury and summarize the testimony of other witnesses. This would be less traumatizing for the victim and it would streamline and speed up the process. This does not change the fact that all the witness must be available at trial and for cross-examination. 4:16:06 PM MS. SCHROEDER said SB 188 seeks to return the Plain Error Rule to what it was pre-2011. An appeal in a criminal case historically started with an objection, which preserved the issue on appeal except when the error was plain. Historically an error was plain if it affected substantial rights, was obvious, had a prejudicial effect, and the decision not to object was not tactical. Beginning in 2011 a series of cases were handed down that reinterpreted the rule and shifted the burden of proof from the defendant to show prejudice to the state to prove the error was harmless beyond a reasonable doubt. The cases also redefined the word "obvious" to include things that are truly debatable. Furthermore, the court will only find that a failure for counsel to object was tactical if the record is clear that it was tactical. The result has been that more cases are taken up on appeal. Now more cases have to be defended on appeal, convictions are jeopardized, the system is less fair, and it's a drain on resources. SB 188 would restore the Plain Error Rule to what it was pre-2011 and provide more finality for victims. 4:19:40 PM SENATOR COSTELLO asked for examples of what conditions of release might include. She also asked her to discuss the significance of a grand jury indictment and the influence it has on the outcome of a trial. MS. SCHROEDER said conditions of release are tailored to both the case and the defendant and might include such things as no contact with the victim and no alcohol consumption. The rebuttable presumption is a strong suggestion from the legislature that this situation must be addressed. The court might respond by requiring the person to engage in a 24/7 sobriety program that requires daily screening. The idea is to adjust the conditions to ensure the individual can comply and public safety is preserved. To the question about the grand jury, she said the constitution requires all felony cases to be brought before a grand jury, but she didn't know the conviction rate in those cases. SENATOR REINBOLD expressed concern about people who are under conditions of release and have had their trials delayed due to Covid-19. MS. SCHROEDER said the prosecutor or the defense attorney can always ask the court to adjust the conditions of release, and the courts are considering trial delays and restrictions on people's liberty so that too is an avenue to seek an adjustment. She added that SB 188 proposes to make the system more efficient in getting indictments and addressing the backlog. 4:24:28 PM CHAIR SHOWER said he may circle back to this topic. SENATOR REINBOLD said the case she referenced did not have a change in circumstance. She also said she didn't care for the use of the term hearsay. MS. SCHROEDER said hearsay is the term that is used under the law. Regarding additional bail hearings, it is not uncommon for attorneys to request a bail hearing to argue for a change when somebody has complied for a long time. 4:25:59 PM SENATOR REINBOLD asked if the hearings can take place online since the courts have been closed. MS. SCHROEDER said yes, and criminal hearings take priority. CHAIR SHOWER asked Angie Kemp if she could answer Senator Costello's question. 4:26:27 PM ANGIE KEMP, Director, Criminal Division, Department of Law, Anchorage, Alaska, said she wasn't aware of statistics on the conviction rates following a grand jury indictment. CHAIR COSTELLO said her reason for asking was to fully understand the significance of a grand jury indictment to all the people that are involved in the case. She said she assumes that allowing hearsay would result in a faster indictment from the grand jury, but this raises concerns about the accuracy of hearsay witnesses and whether the accused would have the ability to mount a proper defense. MS. KEMP agreed that it was correct to suggest that the grand jury indictment is a significant event in the process. It is akin to the probable cause finding, which is one phase among many, but once there is an indictment the victim is informed that the case is moving forward to superior court. CHAIR SHOWER asked Ms. Meade if she had anything to add. 4:29:50 PM NANCY MEADE, General Counsel, Office of the Administrative Director, Alaska Court System, Anchorage, Alaska, stated that over the past four years between 2,500 and 3,000 cases have gone to grand jury and in about 99 percent of those cases the grand jury returned an indictment. That left about one percent of cases that did not result in indictment. CHAIR SHOWER asked if she would agree that the data shows that prosecutors are doing a good job of presenting the data in a case and are getting high rates of indictments. MS. MEADE replied the data indicates that nearly all the cases the prosecutor decides to take to grand jury result in an indictment. CHAIR SHOWER said that's important information for the record because it counters the public perception that criminals often go free. MS. MEADE clarified that the 2,500 to 3,000 cases that went to grand jury are far fewer than the total number of felonies that were filed. These are only the ones that the prosecutor decided to take to a grand jury. CHAIR SHOWER said he understands that, but the data does highlight that the prosecutors have a high rate of success on those cases they decide to take forward. 4:32:57 PM SENATOR COSTELLO asked what the conviction rate was on those indictments. MS. MEADE said she didn't have that information and wasn't certain it was available. She asked if would help to know that in felony cases, about one-third are dismissed by the prosecutor, about two percent go to trial, and about 68 percent are resolved through a guilty plea. SENATOR COSTELLO said she was trying to understand the end result of allowing hearsay because she would assume that allowing family and loved ones to serve as a witness would make it easier to get a grand jury indictment. 4:34:50 PM MS. MEADE agreed that a reason to allow hearsay is to make it easier to get an indictment. The data shows an indictment usually results from a grand jury, although Ms. Schroeder said it would be faster and more efficient to allow hearsay. CHAIR SHOWER noted that both Senator Reinbold and Senator Costello were very strong advocates of victim rights, and both worked to repeal Senate Bill 91. SENATOR REINBOLD asked her to clarify the definition of hearsay in criminal law. MS. MEADE replied it is a well understood term in the field of law. The standard definition is, "An out of court statement offered for the truth in the matter asserted in that statement." Because it's out of court the true source of the statement is not examined. 4:37:56 PM CHAIR SHOWER asked if this ties into the right of the defendant to face their accuser. MS. MEADE replied that is the underpinning of the hearsay rule so it's possible to talk to and examine the source of the issue. For example, if the bill passes and hearsay is permitted, the prosecutor would be able to introduce a police report that says what happened as opposed to producing the people who told the police about the matter that was put in the police report. Allowing hearsay would streamline the process because in that example, the officer reading the report would be the only one to present what happened. She said Ms. Schroeder would point that out later in the proceeding or at trial the defendant would have a chance to examine the people who gave the police the information that went into the report. Hearsay is not permitted at that point unless there is one of the exceptions. CHAIR SHOWER asked for assurance that throughout the process the defendant would have the right to cross examine the people who gave the information that went into the police report. MS. SCHRODER replied, That's correct. There is no confrontation, and I think that's what you're describing - the right to cross examine witnesses etcetera. That does not occur at grand jury as Ms. Meade has described. The grand jury proposal only changes the hearsay aspect of grand jury. The defendant would still be able to review the record of the grand jury, challenge the record, file motions to dismiss. It happens all the time, and they would still be able to do that. We would still need to bring all of the witnesses in at trial for that confrontation, the confrontation clause so that the defendant could cross examine those witnesses. CHAIR SHOWER said that was helpful. 4:41:56 PM SENATOR REINBOLD spoke about how this is important for rape victims. She noted that Ms. Meade gave a clear definition of hearsay and asked Ms. Schroder to clarify that the Department of Law agrees with that definition. MS. SCHRODER concurred with Ms. Meade's description that hearsay is defined by Court Rule; Its "an out of court statement offered for the truth of the matter asserted." CHAIR SHOWER asked Ms. Schroder if she wanted anyone else to testify for the administration. MS. SCHRODER answered no but it would be helpful to ask Ms. Kemp if she had anything to add. CHAIR SHOWER asked Ms. Kemp if she had testimony to offer. MS. KEMP mentioned Senator Reinbold's concern about protecting victims of rape and highlighted that a primary objective is victim protection. Under the current rule a victim of child sexual abuse is required to testify at grand jury and then at trial. 4:45:09 PM CHAIR SHOWER found no further questions or comments and stated he would hold SB 188 for future consideration.