SENATE COMMITTEE ON JUDICIARY

 

 

February 08, 2005                                                                                               Hearing Room 343

1:00 p.m.                                                                                                                       Tapes 28 - 29

 

MEMBERS PRESENT:         Sen. Ginny Burdick, Chair, by speaker phone

Sen. Charles Starr, Vice-Chair

Sen. Roger Beyer

Sen. Floyd Prozanski

Sen. Charlie Ringo

Sen. Vicki Walker

Sen. Doug Whitsett

 

STAFF PRESENT:                 Joe O'Leary, Counsel

Dale Penn, Committee Assistant

 

 

MEASURES/ISSUES HEARD & WITNESSES:      

                                                SB 287 & SB 288 – Public Hearing

                                                            Tom Lininger – Oregon Criminal Justice Commission

                                                            Sybil Hebb – Oregon Law Center

                                                            Tim Sylwester – Department of Justice

                                                            Cheryl O’Neill – Womenspace

                                                            Kelly Skye – Oregon Criminal Defense Lawyers Association

                                                SB 258 – Public Hearing and Work Session

                                                            Sylvia Stevens – Oregon State Bar

                                                SB 272 – Public Hearing

                                                            Peter Ozanne – Public Defense Services Commission

                                                            Mary Williams – Department of Justice

                                                            Kelly Skye – Oregon Criminal Defense Lawyers Association

                                                SB 257 – Public Hearing

                                                            Peter Gartlan

                                               

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

TAPE 28, A

005

Vice-Chair Starr

Calls the meeting to order at 1:10 p.m.  Opens public hearing on SB 287 and SB 288, relating to using hearsay as evidence.

SB 287 & SB 288 – PUBLIC HEARING

020

Tom Lininger

Oregon Criminal Justice Commission.  Reads testimony in support of SB 288 (EXHIBIT A) and provides background on the Crawford decision.

050

Lininger

Discusses how Crawford affected Oregon law.

070

Lininger

Begins discussion of the repercussions of the Crawford decision on prosecution.

118

Lininger

Talks about SB 287, and its relationship to the federal rules.

156

Lininger

Admits that SB 287 is not a fix for Crawford, but it is a step in the right direction.

193

Sen. Ringo

Inquires about the timelines of domestic violence data.

198

Lininger

Replies that reports made closest in time to the actual events (abuse, etc.) are closer to the truth.

214

Sen. Ringo

Wonders if the statements of the victim could be videotaped, recorded, etc, so hearsay isn’t an option.

221

Lininger

States that many police departments are looking into this type of evidence preparation.

238

Sen. Ringo

Asks if these statements are usually made to the officer at the scene or later on at the station.

243

Lininger

Conveys that the usual procedure is to take a statement at the scene, but the preferred protocol involves a specialist in counseling or psychological analysis.

270

Sen. Ringo

Emphasizes that the hearsay statements will be most likely those taken at the scene by an officer, in an environment not easily defended in court.

272

Lininger

Responds he doesn’t know for sure, but it is probably true.

290

Sen. Walker

Asks if other states are dealing with the Crawford decision.

293

Lininger

Replies that there are many states looking into this decision.

300

Sen. Walker

Wonders if other states are interested in Oregon’s legislation as a model.

302

Lininger

States that Oregon has often been at the forefront of legislation dealing with domestic abuse.

322

William E. Taylor

Counsel.  Asks about the wording.

304

Lininger

Discusses the language of the bill, as well as the federal template.  Goes over the reasoning behind their choice in wording and shares examples.

372

Sen. Prozanski

Inquirers about the balancing of the bill, focusing on the extra clause in SB 287.

400

Lininger

Reiterates his desire for symmetry in this bill.  Agrees that there should be language in the bill stating the proponent and opponent of the hearsay statement should not benefit from wrongdoing.

448

Sybil Hebb

Oregon Law Center.  Testifies in support of SB 287 & SB 288 (EXHIBITS B & C).  Describes the reasoning behind this bill as well as the impact.

TAPE 29, A

015

Tim Sylwester

Oregon Department of Justice.  Clarifies the differences between SB 287 & SB 288.  Cites examples of this clarification including domestic as well as elder abuse.

060

Sylwester

Continues with the examples mentioned above.

085

Sen. Prozanski

Inquires about SB 287 (essentially the federal law) challenged as unconstitutional.

094

Sylwester

Discusses the wording of the rules and statutes to get around that problem.

117

Lininger

Comments on the problems prosecutors already face with hearsay issues and how SB 288 would alleviate some of those issues.

151

Taylor

Asks if the reluctance of a witness to testify would classify as “unavailable” under SB 288.

160

Sylwester

Responds that being scared or changing their mind would not classify under SB 288.  States that there would usually require a specific threat to the witness to fall under this bill.

182

Taylor

Wonders about availability of the witness.

190

Sylwester

Clarifies the current law on availability of the witness.

195

Lininger

Goes on to talk about the Crawford decision in relation to the question.

206

Sen. Whitsett

Poses the example of a murdered victim’s statements used against the accused killer.

215

Lininger

Reiterates the meaning of the bill and how it would affect the above scenario.

265

Sen. Whitsett

Asks about administered evidence.

270

Lininger

Replies that there would be a subsequent inquiry concerning the administering of evidence.

295

Sen. Prozanski

Inquires if an amendment relating to murder would be needed for SB 287.

306

Sylwester

Responds that such an amendment would be prudent.

320

Lininger

Clarifies where the language is in SB 287 relating to homicide.

342

Cheryl O’Neill

Womenspace.  Testifies in support of SB 287 & SB 288.  Talks about the effect of the Crawford decision in Oregon.  Explains her history with abuse legislation in Oregon. 

402

O’Neill

Describes the fear victims and witnesses face during domestic violence cases. 

TAPE 28, B

044

Kelly Skye

Oregon Criminal Defense Lawyers Association (OCDLA).  Testifies in opposition to SB 287 & SB 288.  Cites many years of litigation and increased court costs if such a set of bills were to be passed.

081

Skye

Consents that if one of the two bills were to be passed, the OCDLA would prefer SB 287, which has the federal language that has been established in federal court for many years.

139

Sen. Walker

Comments on Sen. Prozanski’s earlier question relating to a murder clause in SB 287.

150

Skye

Responds with information on murder in relation to common law and SB 287.

159

Vice-Chair Starr

Closes public hearing on SB 287 & SB 288 and opens a public hearing on SB 258.

SB 258 – PUBLIC HEARING

172

William E. Taylor

Counsel.  Describes SB 258, relating to appointed counsel at state expense in post conviction relief cases.

180

Peter Gartlan

Office of Public Defense Services.  Testifies in support of SB 258 (EXHIBIT D).  Discusses the background and cleanup of SB 258.

217

Sen. Prozanski

Wonders about the right to attorney for appeal cases.

226

Gartlan

Responds that usually judges have not allowed such an expense, but there have been exceptions.

233

Sen. Prozanski

Asks what counties have done this.

236

Gartlan

Replies that he is unsure.

251

Vice-Chair Starr

Closes public hearing on SB 258 and opens a work session on SB 258.

SB 258 – WORK SESSION

255

Sen. Prozanski

MOTION:  Moves SB 258 to the floor with a DO PASS recommendation.

 

 

VOTE:  6-0-1

EXCUSED:  1 - Ringo

260

Vice-Chair Starr

Hearing no objection, declares the motion CARRIED.

SEN. PROZANSKI will lead discussion on the floor.

265

Vice-Chair Starr

Closes work session on SB 258 and opens a public hearing on SB 272.

SB 272 – PUBLIC HEARING

270

William E. Taylor

Counsel.  Describes SB 272, relating to a deadline for filing nominating petitions for positions on the board of the Oregon State Bar (with amendment, EXHIBIT E).

284

Sylvia Stevens

Oregon State Bar.  Reads testimony in support of SB 272 (EXHIBIT F & G) and provides a detailed analysis of the sections of the bill with history.

334

Stevens

Wishes to increase the role of the State Lawyers Assistance Committee in probationary or diversionary cases.

354

Stevens

Describes the amendments she has proposed relating to lawyers’ claims against clients.

380

Sen. Prozanski

Asks about a provision to focus on lawfully practicing lawyers.

387

Stevens

Replies that the language makes sure only legally practicing lawyers are affected by this bill.

396

Sen. Walker

Asks if other lawyers not licensed in Oregon fall under SB 272.

400

Stevens

Responds that she does not believe so, and gives examples.

422

Sen. Prozanski

Wonders about payments to out-of-state lawyers (multi-state lawyers).

433

Stevens

States that most states want to limit their payments to their own lawyers.

457

Sen. Prozanski

Comments upon reciprocity among states.

492

Stevens

Mentions an added amendment with substitutive language.

TAPE 29, B

040

Stevens

Discusses proposed amendment (Exhibit G).

055

Vice-Chair Starr

Closes public hearing on SB 272 and opens a public hearing on SB 257.

SB 257 – PUBLIC HEARING

055

William E. Taylor

Counsel.  Describes SB 257, relating to appointed counsel in post-conviction relief (PCR) cases.

080

Peter Ozanne

Public Defense Services Commission.  Reads testimony in opposition to SB 257 (EXHIBIT H).  Discusses PCR case statistics and information.

132

Ozanne

Goes over the most common post-conviction relief cases.  Discusses the PCR proceedings involving complaints against lawyers for providing inadequate service to the convicted individual.

182

Ozanne

Advises that funding for public defense should be under the control of the Public Defense Services Commission.

207

Mary Williams

Solicitor General, Oregon Department of Justice.  Testifies in opposition to SB 257 (EXHIBIT I) and focuses on the problem of indigent defense costs.

255

Williams

Comments on the increased costs involved with SB 257.

273

Taylor

Asks about the cost figures, and if there would be increased costs for the courts.

280

Williams

Responds, yes.

285

Kelly Skye

Oregon Criminal Defense Lawyers Association.  Points out that there are many claims available to individuals with grievances in post-conviction relief, and how SB 257 would render this meaningless. 

335

Skye

Goes over meritorious claims in post-conviction relief cases, and how lawyers assist individuals after bad service from previous lawyers.

404

Vice-Chair Starr

Closes public hearing on SB 257 and adjourns the meeting at 2:55 p.m.

 

 

 

 

 

EXHIBIT SUMMARY

 

  1. SB 287 & SB 288, written testimony, Tom Lininger, 4 pp
  2. SB 287 & SB 288, written testimony, Sybil Hebb, 2 pp
  3. SB 287 & SB 288, Crawford Analysis, Sybil Hebb, 1 p
  4. SB 258, written testimony, Peter Gartlan, 1 p
  5. SB 272, -2 amendments, staff, 6 pp
  6. SB 272, written testimony, Sylvia Stevens, 4 pp
  7. SB 272, proposed amendment, Sylvia Stevens, 1 p
  8. SB 257, written testimony, Peter Ozanne, 2 pp
  9. SB 257, written testimony, Mary H. Williams, 1 p