HOUSE FINANCE COMMITTEE FEBRUARY 1, 1995 1:35 P.M. TAPE HFC 95 - 14, Side 2, #000 - end. TAPE HFC 95 - 15, Side 1, #000 - #440. CALL TO ORDER Co-Chair Mark Hanley called the House Finance Committee meeting to order at 1:35 P.M. PRESENT Co-Chair Hanley Representative Kohring Co-Chair Foster Representative Martin Representative Mulder Representative Navarre Representative Brown Representative Parnell Representative Grussendorf Representative Therriault Representative Kelly ALSO PRESENT Gerald Luckhaupt, Legislative Counsel, Division of Legal Service; Dean Guaneli, Chief, Assistant Attorney General, Department of Law; Margo Knuth, Assistant Attorney General, Criminal Division, Department of Law. SUMMARY HB 26 An Act revising Rule 15, Alaska Rules of Criminal Procedure, relating to depositions, to adopt the comparable federal rule. CS HB 26 (JUD) was reported out of Committee with a "do pass" recommendation and with a fiscal note by the Alaska Court System dated 1/26/95 and zero fiscal notes by the Department of Public Safety dated 1/26/95 and the Department of Law dated 1/26/95. HB 27 An Act directing the Department of Public Safety to establish and maintain a deoxyribonucleic acid (DNA) identification registration system and requiring DNA registration by persons convicted of a felony sex offense; and providing for an effective date. CS HB 27 (JUD) was reported out of Committee with a "do pass" recommendation and with new fiscal 1 notes by the House Finance Committee, the Department of Public Safety, and a zero fiscal note by the Department of Law dated 1/26/95 and a fiscal impact note by the Department of Public Safety dated 1/26/95. HOUSE BILL 27 "An Act directing the Department of Public Safety to establish and maintain a deoxyribonucleic acid (DNA) identification registration system and requiring DNA registration by persons convicted of a felony sex offense; and providing for an effective date." GERALD LUCKHAUPT, LEGISLATIVE COUNSEL, DIVISION OF LEGAL SERVICE, explained the changes made to CS HB 27 (JUD) in the legislation. He added, he had attempted to give legal credibility to all the amendments although subsection (b) would need to read slightly different with the adopted changes. With the addition of juveniles to those being tested would require a change to the title. He continued, CS HB 27 (JUD) has a tight title especially in regard to who may be tested. The change to the title would require a language change to Page 1, Line 3, following the language "a person", inserting "and of juveniles 16 years of age or older who are adjudicated a delinquent for an act that would be a felony crime against a person if committed by an adult". Mr. Luckhaupt noted suggestions for technical amendments to the proposed legislation. He referenced Representative Parnell's amendment addressing the testing of some juveniles. Mr. Luckhaupt recommended that the Committee change the current language "juvenile" to "minor". "Minor" is the term predominately used in AS 47.10 and appears to be used in connection with a delinquency finding. Mr. Luckhaupt continued, in addition, Representative Brown's amendment attempted to clean up the differences between subsections (b) and (f) addressing the DNA identification registration system in order to clarify that the system would be confidential. Although, the amendment does not mention the tests in the language being added to subsection (f). He suggested that if the Committee believes "tests" should be added, "tests done on the samples", could be inserted on Line 9 of Amendment G.1. The following "samples," and "tests," would be added to Line 6 of Amendment G.2. Mr. Luckhaupt pointed out that a new subsection (g) added by 2 Amendment G.2 could be reworked to make it more understandable. He recommended eliminating the language of the amendment and replacing it with the following: (g) The Department of Public Safety shall destroy the blood sampled and any identification data of a person if... (l) the conviction or adjudication that subjected the person to having a sample taken under this section is reversed; and... (2) the person (A) may not be retried or readjudicated for the crime; or; (B) after retrial the person is acquitted of the crime or after readjudication for the crime the person is not found to be a delinquent. Mr. Luckhaupt suggested that if the "systems" were confidential for the DNA, the testing could provide a less complicated legislation. Representative Parnell agreed with Mr. Luckhaupt's recommendation to substitute the term "minor" for "juvenile" throughout the bill. He MOVED to adopt the conceptual amendment to CS HB 27 (JUD). There being NO OBJECTION, it was adopted. Representative Parnell MOVED to adopt the language provided by Mr. Luckhaupt regarding subsection (g) and (l), Sections 2(A & B). Representative Brown OBJECTED for the purposes of discussion stating that the language did not make sense. Mr. Luckhaupt advised that in Section (2A), the conviction would be reversed, and following the retrial, the person would be acquitted and the samples would be destroyed. Representative Brown asked what would occur if the State chose not to retry. Mr. Luckhaupt explained that would be addressed in Section (2A), new language written by legal counsel. DEAN GUANELI, CHIEF, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, offered language to address Representative Brown's concern. In Section 2(A) delete the word "may" and insert the word "is" and delete the word "be"; Section 2(B), delete the phrase "the person" on Lines 1 and 2 or Section 2(B). He pointed out that when reversing a case, the ordinary 3 course would be to send it back to the lower courts and repeat the trial. At that point, the State can decide if they want the retrial or not. He pointed out that the language change would deal with that circumstance and would correct previous loopholes. Representative Parnell WITHDREW THE MOTION to amend. Representative Brown WITHDREW THE OBJECTION in order to correct the language as provided by legal counsel. Following discussion, the Committee brought forth questions regarding the DNA identification registration system. Representative Parnell and Representative Brown debated the confidentiality of those records. Mr. Luckhaupt recommended changing the language on Page 2, Line 25-27 of CS HB 27 (K) version. The proposed new language would read: "The DNA identification registration-system is confidential, is not a public record under AS 09.25.110-09.25.140, and may be used only for..." He added an additional language change to Page 3, Lines 3 - 4, deleting the language "blood or oral samples and any identification data" and inserting "material within the system". Representative Parnell MOVED to adopt the conceptual amendment as recommended by Mr. Luckhaupt to Page 2, Lines 25-27. There being NO OBJECTION, it was adopted. Mr. Luckhaupt noted that all the changes made thus far would fit within the previous title change recommended. Representative Parnell MOVED the amended title. There being NO OBJECTION, it was adopted. Representative Brown MOVED to adopt Amendment 9-LS0148\G.5. [Attachment #1]. She stated the amendment would add a more precise and clear definition of "oral sample" than used in the previous language. There being NO OBJECTION, it was adopted. Representative Brown MOVED to adopt Amendment 9-LS0148\G.4. [Attachment #2]. She stated that the amendment would identify the direction of the Department of Public Safety and the overall criminal justice system. There being NO OBJECTION, it was adopted. Representative Brown MOVED to adopt Amendment 9-LS0148\G.3. [Attachment #3]. Representative Parnell OBJECTED for purposes of discussion, pointing out his original concerns with the amendment in dealing with future court cases. He advised that if a person is accused of another crime, the DNA data would already be available. Representative Parnell said following consultation with Mr. Guaneli, he understood 4 that the amendment would not impact the Rules of Discovery. Representative Parnell WITHDREW THE OBJECTION to the amendment. There being NO FURTHER OBJECTION, it was adopted. Co-Chair Hanley explained that the new fiscal note provided by the House Finance Committee would increase the previous one by $2 thousand dollars. He asked if there were objections to the revised fiscal note. Representative Brown emphasized that all the fiscal notes failed to reflect the "real" costs of the program. (Tape Change, HFC 95-15, Side 1). Representative Brown recommended that the legislation be held until the overall priorities of spending have been established for public safety and the responsibility of that Department. She emphasized that the fiscal notes are not a true cost reflection of actual costs of the proposed legislation. Representative Parnell MOVED to report CS HB 27 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. Representative Brown OBJECTED. A roll call vote was taken on the MOTION. IN FAVOR: Martin, Mulder, Parnell, Therriault, Grussendorf, Kelly, Kohring, Hanley, Foster. OPPOSED: Brown. Representative Navarre was not present for the vote. The MOTION PASSED (9-1). CS HB 27 (FIN) was reported out of Committee with a "do pass" recommendation and with fiscal notes by the House Finance Committee, the two by the Department of Public Safety one of which was dated 1/26/95 and a zero fiscal note by the Department of Law dated 1/26/95. HOUSE BILL 26 "An Act revising Rule 15, Alaska Rules of Criminal Procedure, relating to depositions, to adopt the comparable federal rule." Representative Parnell explained that HB 26 would change the Alaska Rules of Criminal Procedure to permit depositions of victims and adverse witnesses only in exceptional 5 circumstances. Under the bill, the defense would retain access to statements taken by police and grand jury testimony of the victim and witnesses, as well as the ability to face the accuser at the trail. He added, in practice, Alaska's current Rule 15 enables defense attorneys to take numerous depositions of victims and witnesses, and would provide fertile ground for the discovery of abuse. The mishandling of that privilege slows the due process, unnecessarily burdens the courts, and serves to harass victims rather than promoting the ends of justice. MARGO KNUTH, ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF LAW, commented on the "exceptional circumstances" aspect of the proposed legislation. She stated that the proposed legislation would particularly be beneficial in some parts of the State. She added, the importance of discovery tools allows neither side to be surprised by the evidence of the other side. In civil cases, depositions provide the needed information from the other side. In criminal cases, specifically in Alaska, the prosecution provides all of the information that it has accumulated in an up front case to the defendant. Representative Brown referenced Page 2, Lines 7-11, and asked how the language would be changed by the proposed "discovery rule", Court Rule #16. Ms. Knuth responded that if the legislation was adopted as it is now and the federal Rule #16 was adopted, under that federal rule, defendants would not be given access to the grand jury material. She clarified that there would not be cause for concern if the federal Rule #16 was adopted. The State does not favor a "discovery bill" that would deny access to grand jury materials to defendants. In supporting CS HB 26 (JUD), the Department of Law assumes that the bill on "discovery" would allow defendants to obtain access to the grand jury material in the case against them. Representative Brown questioned the recorded statement from the law enforcement agency. Ms. Knuth replied, if the defendant does have access to the recorded statement, then the defendant is not going to be surprised by what the victim says at trial. If the defendant is surprised by what the victim says, the defendant should have access to the recorded material before a presumption is created, in which case there should not be a deposition. Representative Brown asked if the sponsor shared the Department of Law's position. Representative Parnell acknowledged that any evidence that negated the guilt of the defendant would be "discoverable" regardless of the source. 6 Ms. Knuth responded to a statement by Representative Brown regarding "opting in" through the deposition. Although, a court asking to allow a deposition of a victim or witness would then technically have another opportunity but because the victim could have participated in a reciprocal case, could be given the choice not too. Representative Brown pointed out the other pending legislation addressing the "discovery rule", Rule 16 and requested holding CS HB 26 (JUD) for further discussion with that legislation. Representative Parnell emphasized that the legislation stands on own. Regardless of the status of the other discovery legislation, CS HB 26 (JUD) addresses concerns not listed in that legislation. Representative Mulder MOVED to report CS HB 26 (JUD) out of Committee with individual recommendations and with the accompanying fiscal notes. There being NO OBJECTIONS, it was reported out of Committee. CS HB 26 (JUD) was reported out of Committee with a "do pass" recommendation and with fiscal notes by the Alaska Court System dated 1/26/95, the Department of Public Safety dated 1/26/95 and the Department of Law dated 1/26/95. ADJOURNMENT The meeting adjourned at 2:55 P.M.