MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session April 7, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:50 a.m., on Friday, April 7, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee GUEST LEGISLATORS PRESENT: Assemblywoman Jeannine Stroth, Clark County, District No. 5 STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Judy Jacobs, Committee Secretary OTHERS PRESENT: Richard A. Gammick, District Attorney, Washoe County William A. Maddox, Attorney Karen C. Winckler, Lawyer James J. Jackson, State Public Defender, Office of the State Public Defender Patricia R. Justice, Lobbyist, Clark County Senator James asked the committee to consider committee introduction of a bill draft request (BDR). BILL DRAFT REQUEST 4-628: Authorizes additional persons or entities to establish authenticity of records by affidavit of custodian of records. SENATOR PORTER MOVED FOR COMMITTEE INTRODUCTION OF BDR 4-628. SENATOR ADLER SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.) * * * * * Senator James opened the hearing on Assembly Bill (A.B.) 110. ASSEMBLY BILL 110: Revises provisions concerning exclusion of witnesses from certain proceedings. Assemblywoman Jeannine Stroth, Clark County, District No. 5, explained A.B. 110 provides that a witness testifying primarily for the purpose of identifying the victim may not be excluded from attending other portions of the judicial proceeding except at the discretion of the judge or magistrate. She said the bill will protect persons from being excluded from trial proceedings where their testimony is only material for the purpose of identifying the victim, and it is especially important for the relatives and friends of the victim who have a serious interest in observing the proceedings. She stated under existing law such people are excluded even though their testimony is not material to the outcome of the case. Ms .Stroth provided written testimony (Exhibit C) from Eva Collenberger, Executive Director of Families of Murder Victims, in support of A.B. 110. Ms. Stroth recalled testimony in which Ms. Collenberger said testifying is one of the last things families of victims feel they can do for their loved ones who have been murdered. In response to a query by Senator James, Ms. Stroth said the Assembly Committee on Judiciary experienced difficulty defining the family of the victim in an attempt to include in-laws, ex-spouses, fiances, step-parents and other extended family members. She said the committee decided to include anyone who is called as a witness for identification purposes, not just family members. In the absence of further testimony, Senator James closed the hearing on A.B. 110 and opened the hearing on A.B. 151. ASSEMBLY BILL 151: Requires criminal defendant to serve notice to district attorney of witnesses defendant intends to call at trial and allows criminal defendant and district attorney to discover certain matters. Ms. Stroth distributed copies of a recent newspaper article (Exhibit D) depicting her role as a victim of violent crime as well as her election to office. She spoke from written testimony (Exhibit E) in which she described the provisions of A.B. 151 and asserted there are failings of parts of the judicial system. Richard A. Gammick, District Attorney, Washoe County, testified in favor of A.B. 151. He decried the failure to pursue of the truth in recent times. He declared: Today we are so bogged down with all the myriad of procedural traps and all the other problems that go on that time and time again a jury does not hear the truth. They hear part of it. And then we require those people to render a decision on somebody's future based on part of the facts. Mr. Gammick professed his belief that the system should be expedited, should be made as efficient as possible and that it should get "rid of the games that are played." Mr. Gammick pointed out A.B. 151 asks for the defense to present the names, addresses and telephone numbers of witnesses. He said that has been done in Washoe County for 10 years. He provided the committee with copies of a memo and a Stipulation and Order for Reciprocal Discovery used in Washoe County (Exhibit F). He asserted use of the order reduces the time consumed in court to obtain orders for statutory discovery. Mr. Gammick noted he has never had a defense attorney refuse to sign the stipulation. He pointed out the order does not ask for privileged information, attorney-client information or anything else the defense attorney feels should be withheld under the law. He indicated most attorneys sign the document and do not file motions for discovery. He stated the order expedites the process by doing away with many motions and hearings. Mr. Gammick reported S.B. 166 was identical to A.B. 151 and then it was amended to strike much of the information included in A.B. 151. SENATE BILL 166: Requires notice of expert witnesses who are expected to testify at criminal trial and allows criminal defendant and district attorney to discover certain matters. He asserted the amendments added to S.B. 166 would take Washoe County a step backward. Due to the increase in crime, he said, everything that can be done to make the system responsible and to expedite matters must be done. Mr. Gammick cited a recent article in the Reno Gazette-Journal in support of the provisions of A.B. 151 which will open discovery. As far as questions concerning the constitutionality of the measure, he said his research has indicated three other states use the same system of reciprocal discovery. He said the California Supreme Court, sitting en banc, found the California law to be totally constitutional under the constitutions of both the United States and California. He stated the California law is nearly identical to A.B. 151. He made reference to the California case in Exhibit F. Mr. Gammick denied there will be great fiscal impact on the defense bar or on public defenders' offices, as has been charged. He explained the only information to be provided through the bill is information already contained in their files. Mr. Gammick reported John Morrow, the assistant public defender for Washoe County, who testified before the Assembly, has agreed to reciprocal discovery. He said Mr. Morrow's only concern was that the 30-day requirement for notice contained in the original bill was too long, so the bill was amended to require notice 21 days prior to trial. He stated the deputy public defender for Clark County agreed to the provision for reciprocal discovery and only objected to the 30-day provision. Mr. Gammick indicated he would accept any reasonable time for notice as long as it will allow him time to provide the opportunity to contact the witnesses, to determine what information they have, and to run criminal background checks. He stated that will allow attorneys to be prepared when they go into court. Mr. Gammick related there have been several murder cases which were plea bargained, and some dismissed, after the defense came forward with witnesses who were then queried by the prosecution. He declared the production of witness lists provides an overall picture, it saves time and going to trial often becomes unnecessary. He described the change as one different from the "Perry Mason type case ... when the big surprise witness comes up and blows the prosecution out every time." He said he has been informed a trial in District Court costs $10,000 per day. He reiterated A.B. 151 will save costs. Mr. Gammick denied the charge that providing witness lists will give the prosecution the ability to use defense witnesses to build a case. He pointed out the prosecution must prove probable cause in order to file the original complaint, so the elements must be present before the preliminary hearing. He listed the motions and writs that may then be filed to challenge the case and said by the time the provisions of A.B. 151 come into effect the case is already strong enough to be set for trial. Senator Washington inquired what problems could arise from A.B. 151 if the defense fails to comply. Mr. Gammick admitted if state law requires the defense to come forward, and the defense later brings in a surprise witness, the court is in a difficult position. He said if the witness is denied the right to testify a mistrial or reversal could result, but the court has the option to bring sanctions against the defense attorney for not coming forward with the information within the required time. Mr. Gammick acknowledged not all the witnesses may be known 21 days prior to the trial, so A.B. 151 provides they can be named as soon as they are identified. If they are named too close to trial, he said, it will be up to the judge to determine what, if any, measures should be taken. Mr. Gammick pointed out that by state law the prosecution files a full list of witnesses at the time of the filing, usually at least 60 days prior to trial, and sometimes months prior to trial. Mr. Gammick voiced his understanding that Clark County has had an open-file policy for many years, but has never requested information back in return. He opined much of the opposition is coming from Clark County because the defense has never before been obliged to furnish information. He reiterated Washoe County argued the issue and resolved it some years ago. He repeated his opinion A.B. 151 will result in a more just system. He stated, "It gives an opportunity to try to get back to this search for the truth, which we've lost track of somewhere." Mr. Gammick urged the committee to pass A.B. 151 as it is written. Senator James inquired what is included under the provision in the stipulation calling for "all discovery materials provided in NRS [Nevada Revised Statutes] 174.235." Mr. Gammick replied the present law provides for the prosecution to obtain a court order for the defense to furnish physical evidence for review by the prosecution if the court finds there is good cause. He said A.B. 151 will allow the prosecution the same privilege without the necessity of proving there is good cause by simply filing a motion. Senator James asked if the portions of section 5 of A.B. 151 requiring a showing of materiality and reasonableness are what Mr. Gammick means by "good cause." Mr. Gammick affirmed the query. He stated he does not understand why "materiality and reasonableness" is included because it will be material if there is a case. Senator James inquired if "materiality and reasonableness will continue to apply under NRS 174.245 but not under NRS 174.235 if A.B. 151 passes. He suggested a change should be made to make the two sections consistent with each other. Mr. Gammick agreed and called the words "materiality and reasonable" redundant. Senator James noted the stipulation calls for names, addresses and telephone numbers, just as provided in the bill. He asked how big a problem is caused by the 10 percent of defense attorneys who are not willing to sign the stipulation, and why the bill is needed. Mr. Gammick replied: The problem is ... that under the current law we can continue to function just like we're functioning now. My concern is that if S.B. 166 is made law, then it changes the law and it does not require them to give that information, plus it makes some other changes so we may not be in the same position that we're in today to tell them to go ahead and file their motion and go to court. Mr. Gammick said if A.B. 151 is not approved, he will request that no bills be passed so prosecutors can continue to practice in the same manner as at present. He indicated the number who refuse to stipulate is actually less than 10 percent and it is generally the same attorneys who refuse to sign a reciprocal discovery agreement for any case. He called them "obstructionists" who will not sign no matter what the facts of the case may be. Senator James asked if the concern in passing limited discovery, such as disclosure of expert witnesses, would discourage defense attorneys from signing the stipulation. Mr. Gammick concurred and explained he is concerned the approval of only a part of the measure could be a step backwards. Mr. Gammick pointed out there are some judges who refuse to impose sanctions when defense attorneys fail to comply, after having signed the stipulation, on the basis that the stipulation is not part of the law. Senator James admitted he did not understand such failure to act because the agreed-upon stipulation should be considered part of the law. Senator James inquired if the language on lines 4 through 6 under subsection 2, section 3 on page 3, was limiting, since often the attorney for the defense will have boxes full of information before he has determined just what he will actually use in the trial. Mr. Gammick replied most Washoe County attorneys do not take statements from witnesses, so that information would not be available. He stated he has no intention that copies of information from the defense should be obtained just because they have the information, only to require information that will actually be used. Senator James pointed out his concern is with the language on line 6 stating "or otherwise use." He asked how it might be used. Mr. Gammick replied it might be used for impeachment purposes to show the witness knew something not previously declared. Senator Adler noted the stipulation calls for names, addresses and telephone numbers of "all prospective witnesses," whereas the bill states "all witnesses whom he intends to call at the time of trial." He charged that is a substantial difference, because the stipulation does not specify that the witnesses only be those whom the defense intends to call. He opined the stipulation makes more sense than the bill because the law does not mandate that an attorney reveal who he intends to call at trial. Senator Adler wondered if the bill will ask the defense to give up information without a motion whereas the district attorney will still have the ability to require a motion to give up information. Mr. Gammick called attention to lines 28 through 30 on the second page of the bill under which the requirement would remain as stated by Senator Adler. Senator Adler suggested there is no reciprocal section for the district attorney to make disclosure, and he voiced his opinion there should be parallel language so that both the defense and the district attorney will have the same requirements. He declared leaving the language as is will make the standards different for the two sides. Mr. Gammick agreed the standards should be identical. William A. Maddox, Attorney, offered support for A.B. 151. He stated he has been a prosecutor as a United States Attorney and a district attorney, and he has also worked for several years as a defense attorney . He voiced his dislike of discovery which he called a waste of the court's time and a waste of time for the attorneys that are involved. Mr. Maddox said, "If you set up a game, attorneys are going to play it." He suggested A.B. 151 may limit the games that can be played by requiring both sides to provide discovery items. He declared the members of the Legislature should be concerned with providing as fair a system as possible for both sides and for the State of Nevada. He averred the bill will move closer to that objective. Mr. Maddox suggested the measure be limited to actions in the district court. He said as written it appears A.B. 151 will apply to the lower courts. He said, as a practical matter, a traffic ticket is a misdemeanor and theoretically both prosection and defense could be required to file lists of witnesses on traffic cases, which is probably not the intent of the bill sponsors. Senator Adler suggested the including the words "and prosecutor shall" where the bill states "defendant shall" regarding the 21-day notice. Mr. Maddox agreed. He noted S.B. 166 includes both. Karen C. Winckler, Lawyer, told the committee that as a defense attorney she is a member of Nevada Attorneys for Criminal Justice which opposes A.B. 151. She recalled testimony in Las Vegas regarding S.B. 166 that resulted in an agreement that the only witnesses to be disclosed will be expert witnesses. She said the logic leading up to that conclusion had been voiced in detail for the committee at that time, which she offered to repeat. Saying the committee was familiar with the testimony, Senator James requested she point out the differences between the two bills. Ms. Winckler explained S.B 166 will limit disclosure to expert witnesses, and reports and information will be provided to the government about those witnesses prior to trial. She asserted exert witnesses may need to be rebutted by another expert and the bill will give the prosecution time to prepare for trial by finding rebuttal expert witnesses in time for them to review defense reports and to prepare reports. Ms. Winckler asserted the primary difference between the two bills is that "all other witnesses" are very different from expert witnesses. She explained expert witnesses usually testify regarding technical aspects of the case, and expert witnesses analyze things which occurred at the crime scene from an independent point of view that is important for the jury to understand. She said "all other witnesses" are people who were at the crime scene at the time it was committed. Ms. Winckler declared disclosure of "all other witnesses" would mean she, as an attorney, would be offering a witness who could place her client at the scene. She said now a defendant has the constitutional right to remain silent and not give evidence himself, but she asserted A.B. 151 will force the situation. She explained if the prosecution fails to show the defendant was at the crime scene, the defense is not obliged to call the witness. However, she said, if the witness is disclosed according to the provisions of A.B. 151 prior to presentation of the defendant's case, the defense will be left with no alternative except to proceed with the case and attempt to prove self-defense because the state was not forced to prove its case. Ms Winckler declared Mr. Gammick's proposal that a trial should be a search for truth is a simplistic way of looking at a trial. She asserted a trial is a search for justice. She pointed out the Constitution provides protection for the innocent, and, she asserted, many innocent people are charged. She claimed placing the burden on them to furnish information to the prosecutor will tip the balance of justice in favor of the prosecutor. Ms. Winckler noted the defendant is not allowed to call witnesses, examine witnesses or examine evidence in grand jury hearings. She added the defendant does not have the right to ask for a search warrant to secure evidence, nor does the defendant have other powers that are granted to the state. She charged the police and prosecutors "can lie, because they're out to help the good guy and get the bad guy." She asserted, "They can do whatever they want, and they're not held accountable for that." Ms. Winckler declared the provisions of A.B. 151 will add to the powers of the police and prosecutors by requiring the defendant to give up all his information. She stated Mr. Gammick is wrong when he claims that attorneys for the defense do not take statements. She said attorneys for the defense often take statements. Ms. Winckler pointed out the prosecution has a large staff that is available to interview witnesses. She reiterated the defendant has the right to remain silent and the right to a fair jury trial. She opined A.B. 151 will not provide for a fair jury trial by taking away one of the defendant's few protections. Ms. Winckler requested the committee either not pass A.B. 151, or else amend it so it will be the same as S.B. 166. She acknowledged she feels sympathy for many who have testified in favor of the bill, but she asserted society is more important and America is based upon a delicate balance. Ms. Winckler cited California as an example of how a similar measure passed in 1990 has bogged down the legal system. She asserted, "This bill is attacking the Constitution. Before you make such massive changes to the way that criminal trials are held, be sure that you think it through very carefully." She stated in this society the law is written to shield the defendant and the entire burden of proving criminal activity rests on the state. She cited a case in which United States Supreme Court Justice William O. Douglas said: When we talk about a criminal trial being a poker game or a sporting contest, really that's required by the Fifth Amendment [of the Constitution of the United States], for the tactical advantage to the defendant is inherent in the type of trial that is required by the Bill of Rights. The framers were well aware of the awesome investigative and prosecutorial powers of the government, and it was in order to limit those powers that they spelled out in detail in the Constitution, the procedure to be followed in criminal trials. A defendant, they said, is entitled to notice of the charges against him, a trial by jury, the right to counsel for his defense, the right to confront and cross- examine witnesses, the right to call witnesses in his own behalf, and the right not to be a witness against himself. All of these rights are designed to shield the defendant against the state's power. None are designed to make convictions easier, and taken together they clearly indicate that in our system, the entire burden of proving criminal activity rests on the state. The defendant, under our Constitution, need not do anything at all to defend himself and certainly he cannot be required to help convict himself. Rather, he has an absolute, unqualified right to compel the state to investigate its own case, to find its own witnesses, to prove its own facts, and convince the jury through its own resources. Throughout the process the defendant has the fundamental right to remain silent; in effect, challenging the state at every point to prove it. Senator James indicated many people equate truth with justice, and the difference between them is a difficult philosophical question. He asked why the case should not be tried upon the true facts if a person intends to claim self-defense. Regarding truth versus justice, Ms. Winckler responded matters which are true, such as a defendant's prior criminal record, may not be relevant and may be prejudicial to the point that a jury, hearing them, will assume the defendant who was once guilty must be guilty again. She asserted people can change their behavior and a jury should not be burdened with prejudicial information. Responding to the second part of Senator James' question, Ms. Winckler reiterated the state has the burden of proof and, if it fails, there is nothing in the Constitution which requires a defendant to provide the state with information that would convict him. Senator James agreed there is a constitutional right to remain silent, but it has been interpreted as not being a blanket right, and it has been limited throughout the years to require certain disclosures. He noted the Supreme Court of the State of California has determined that the provisions of A.B. 151 does not offend the right to remain silent. Ms. Winckler stated her belief A.B. 151 is not an exact copy of the California statute, but she admitted she does not know what was presented to the California Supreme Court nor what the basis was for the ruling. Senator Porter acknowledged some criminals can be rehabilitated, but pointed out there has been testimony before the committee that many cannot be rehabilitated and they repeat their crimes. He asked if the history of a sexual deviant, who has demonstrated he cannot be rehabilitated, should be made part of the trial. Ms. Winckler conceded each case must be evaluated upon its own merits, and the question put to a judge to determine whether it should be introduced because it is relevant or should not because it is too prejudicial. Senator Lee asked if a witness has the same right to remain silent as the accused. Ms. Winckler replied, "No." Senator Lee asked if the witness will be obliged to talk to the prosecutor if A.B. 151 passes and the witness' name is disclosed. Ms. Winckler replied the witness will not be compelled to talk unless he is called before a grand jury. James J. Jackson, State Public Defender, Office of the State Public Defender, requested the committee to pass only S.B. 166, not A.B. 151. He declared S.B. 166 is a compromise which will address the concerns expressed. Mr. Jackson said, "I think we have to be extremely reticent in this state to not try [to] change something that's not broken and cure the ills that occur in other states." He suggested that using California as a model is a poor example of efficiency, judicial economy or ease of operation. Mr. Jackson stated it should be kept in mind how a case comes to a defense attorney. He said typically the matter has been thoroughly investigated through the questioning of witnesses and gathering of evidence to the point the prosecution feels confident that it can carry the burden forth. It is at that point in time, he said, that the defendant commences his "assault" on the evidence and witnesses in an attempt to defend himself. He declared, through all that, often the best thing a defendant can do is remain silent. Mr. Jackson reiterated his support for the compromise reached in the Assembly with S.B. 166. He said the stipulation presented by Mr. Gammick is used not only in Washoe County, but also in Carson City and the six other jurisdictions in which his office operates. He indicated it will also be used in Clark County soon. Senator James asked if the provisions of A.B. 151, in which many things will have been disclosed that might not have been otherwise, will change the determination by the defense to not put on a case after the prosecution's case has been heard. Mr. Jackson responded: I believe it very easily could... If you're successful in your cross- examination of prosecution witnesses such that you damage or destroy their credibility before the jury, or perhaps you are successful in keeping out certain pieces of evidence, or perhaps, once you get a witness on the stand who is to be there to describe what a piece of evidence's significance is, completely turns it around from what the prosecution might have thought it would be ... your best thing may be to simply not put on a case. But if you've given everything up, I also question whether or not the subpoena powers that are also available to the state won't be used to compel those people to come in and basically take your case away from you before you ever have a chance to put it on. Senator Adler pointed out the bill refers to witnesses "whom he intends to call at trial" and does not state "prospective witnesses" such as set forth in Mr. Gammick's stipulation. He reiterated his concern with the specification to list witnesses the defense intends to call. Mr. Jackson agreed the language bothers him. He pointed out matters can change dramatically during the course of a trial. He cited a case in which 67 witnesses were listed, but only 22 were called because the case was so strong. Senator Adler inquired if the provision in section 1 to list witnesses 21 days before trial and the provision in section 2 to list the alibi witnesses 10 days before trial pose an inconsistency. Mr. Jackson surmised it means the alibi witnesses will not have to be disclosed until 10 days prior to trial. Senator Adler pointed out the statutes provide that prosecution witnesses are entitled to protective orders, but A.B. 151 does not provide for protective orders for the defense witnesses. He declared A.B. 151 may give the prosecution more rights to discovery than the defense. Patricia R. Justice, Lobbyist, Clark County, testified the county fiscal analyst has determined there will be a negative fiscal impact of approximately $800,000 per year if A.B. 151 passes. She said it will require seven additional attorneys and seven additional investigators. She reported the assistant public defender of Clark County, Bob Larson, was present when the bill was heard by the Assembly Committee on Judiciary and he indicated at that time the measure would have a sizeable impact on Clark County. Ms. Justice stated 4,315 felony cases were filed in Clark County between July 1 and December 31 last year. She pointed out often more than one charge was filed with each case. During the same period, she said, there were 513 gross misdemeanor cases filed, for a total of 4,828 over the 6-month period. Ms. Justice said there are 45 public defenders in the Clark County Public Defender Office, divided into tracks, from which only 30 are performing track work, while the remainder are assigned to administration, juvenile and municipal courts, appeals and death penalty cases. She pointed out that means 30 attorneys handled the 4,828 cases for an average of 150.9 cases each for the 6-month period. She said of those cases, just 32 went to trial, while 4,796 were negotiated, went to drug court, were left pending, or were otherwise resolved. She noted eight district courts are kept busy full-time processing the 4,828 cases. Ms. Justice declared S.B. 166 will provide a method of testing the witness disclosure provision, and all the major parties agreed to it. Mr. Gammick voiced concern with an insinuation that Stuart Bell, Clark County District Attorney, supported the changes to S.B. 166, which Mr. Gammick declared is false . He asserted Mr. Bell also took exception to the $800,000 cited as estimated costs for A.B. 151 when he appeared at the hearing on the measure. Mr. Gammick pointed out A.B. 151 will ask for no more than the information that is already in their files. He said, "To do this to this bill, I think, is totally improper, and I would challenge that to show me where it is going to make that kind of a requirement on the Las Vegas Public Defender's Office." He said it does not impose a burden on the Washoe County Public Defender's Office which provides the information on a regular basis. Mr. Gammick added: Also there's a little thing in the law that when you cite cases in front of a court, it's totally inappropriate to cite dissenting opinions unless you advise the court that it is, in fact, a dissenting opinion. What you've been cited on Williams v. Florida, a United States Supreme Court case, was out of the dissent, which means that was not the winning side. The winning side in that case, the United States Supreme Court, when the challenge was made on furnishing the information on alibi witnesses, upheld the furnishing of that information. The United States Supreme Court said it was not a Fifth Amendment or Miranda violation, that that information passed constitutional muster. Senator James recalled when the case had been cited in an earlier hearing it had been cited as a dissent of Justice Douglas. He asked if the case referred to an alibi witness, which he asserted would not help the state, whereas the other witnesses may be in a position to help or damage the state's case. He asked if the United States Supreme Court would make a distinction between imposing the requirement upon an alibi witness or on other witnesses. He acknowledged he had expert witnesses in mind when he supported the S.B. 166 compromise. He declared there is a difference between an expert and all the other witnesses who may be called who may or may not help a case. Mr. Gammick responded his office does not see a dozen self-defenses cases out of the 4,800 felony cases filed in a year. He said the defense has called prosecution witnesses in numerous trials in which he has been involved because they had information favorable to the defense. He cited a United States Supreme Court case in which the court stated "the defendant is entitled to a fair trial, not a perfect one." He asserted defendants do get a fair trial and are given their constitutional rights. Mr. Gammick disputed the so-called "overpowering power" attributed to the state. He said with the huge crime rate the entire prosecutorial system is busy, and the defendant is always presumed innocent while the state has the burden of proof beyond a reasonable doubt. He pointed out the defendant has the ability to subpoena any witnesses he wants. He declared the playing field is not unbalanced. He asserted the purpose of A.B. 151 is to search for the truth and to get the facts. He asked, "Why go to trial if you don't have to go to trial?" Mr. Gammick pointed out the bill is not a product of California law. He said the question regarding constitutionality had come from California. He added the court in Arizona also found the provisions of the bill to be constitutional. Senator James inquired how many states have the same level of reciprocal discovery. Mr. Gammick replied he knows only of California, Arizona and New York. He declared, "I think we're on the cutting edge of something here, and ... they're progressive states." Mr. Gammick agreed with Mr. Maddox that the bill will get rid of court hearings, motions and other measures that slow the process. He recalled: Back when I started as a prosecutor ... there were games played with this all of the time, continually. We were in court all of the time. I want this document. Back to court. Another hearing.... We finally came up with this reciprocal discovery agreement, that I gave you, which was put together with the defense bar. Everybody agreed, and now we have a few people who won't go along with it.... Mr. Gammick proposed two amendments to A.B. 151. The first, he said, was to change lines 6 and 7 on the first page to read, "The names and last known addresses of all known prospective witnesses; and" and strike the language, "whom he intends to call at the time of trial." Mr. Gammick suggested striking the word "motion" on line 28 on the second page and substituting the word "request," and he also suggested striking the words "the court may order" on the same line. On line 29, he suggested striking the words "to permit" and inserting the words "shall permit." Senator Lee asked how many times the prosecution has been forced to go to court to obtain the information to be provided from A.B. 151. Mr. Gammick replied that before the reciprocal discovery stipulation it was necessary to go to court every time the prosecution wanted anything. He said since the system was inaugurated the necessity of going to court is seldom required. Senator Lee asked how many times the request of the prosecution was denied. Mr. Gammick responded he was unaware of the court ever denying the request. Senator Adler interjected the statutes provide that the prosecution may apply for a protective order. He suggested A.B. 151 should be altered to provide that the defense be allowed to apply in chambers for a protective order from the judge. Mr. Gammick agreed to changing the statutes to make protective orders reciprocal. Senator James requested copies of the California Supreme Court decision, of the decision from the United States Supreme Court, and of the statutes from the three states that already have the law. He closed the hearing on A.B. 151 and announced it will be brought to a vote later. Senator James pointed out A.B. 110 will require a technical amendment to clarify an exception in subsection 2. SENATOR LEE MOVED TO AMEND AND DO PASS A.B. 110. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR WASHINGTON WAS ABSENT FOR THE VOTE.) * * * * * The meeting was adjourned at 10:28 a.m. RESPECTFULLY SUBMITTED: Judy Jacobs, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary April 7, 1995 Page