2005 Legislative Session Report #8

During the last week of the Session (legislative days 35 through 39), the conference committee report to the FY06 general budget (HB 85) was adopted by both the Senate and the House. The Standards Council received its budget request of $42.079 million.

Also, the General Oversight Committee for the Standards Council met on Wednesday (3/23) morning and determined that all of the standards adopted so far by the Standards Council have a fiscal impact. A committee report has been filed with the House Journal Committee.

On other legislative matters, the conference committee report to HB 366 was adopted by both the House and the Senate. HB 366 had to go to conference committee because some technical amendments had to be made because the Senate took out the HB 316 (juvenile public defenders) language.

The conference committee report to SB 203 (recovery of attorney's fees) was adopted by the Senate, but was not taken up by the House. Consequently, SB 203 will be moved over to next year. The conference committee report provided that the local victim assistance fees are reportable rather than remittable, clarified what constituted a civil filing for probate actions, clarified which entity is entitled to the $50 application fee, recovery of public defender services, and provided for a work release program.

HB 170 (Criminal Justice Act of 2005) passed out of both the Senate and House with a couple of changes.

Here is a summary of the final bill:

Motion for recusal of judge or motion for new trial
The denial or grant of those motions may be directly appealable by the State.

The defense may appeal the denial of the motion to recuse via interlocutory appeal.

Peremptory challenges:
Misdemeanor strikes were reduced from 4 to 3. Felony strikes were reduced from 12 to 9. Death penalty strikes were reduced from 20 to 15. The State has an equal number of strikes as the defense in all of the cases. The order by which each side exercises its strikes remains the same (the old Code Section 15-12-166). The number of jurors to be impaneled remains the same. In cases where 2 or more defendants are tried jointly, the court may allow the state additional strikes not to exceed the number of additional strikes as are allowed to the defendants.

A new subparagraph (d) was added to Code Section 15-12-164 which states that the court shall excuse for cause any juror who from the totality of the juror's answers on voir dire is determined by the court to be substantially impaired in the juror's ability to be fair and impartial. The juror's own representation that the juror would be fair and impartial is to be considered by the court but is not determinative.

Closing arguments
The State is entitled to both open and conclude regardless of whether the defense puts in any evidence. The State cannot waive opening.

In death penalty sentencing hearings, the defense may conclude.

Aggravation evidence
The state must provide to the defense notice of any evidence in aggravation of punishment 10 days before trial or at such time the court orders but no later than the beginning of the trial.

Discovery of death penalty mitigation evidence
If the defendant has opted into the discovery provisions, then the defense must turn over discovery of mitigation evidence to the prosecution no later than the return of a guilty verdict. However, the defense must turn over the witness list 5 days before trial commences. Any statements made can be turned over at the return of a guilty verdict.

Impeachment
Any party may attack the credibility of a witness. Character evidence via reputation testimony of the defendant may be brought in if the defendant testifies and offers evidence of his truthful character. Any party may impeach the witness' credibility. Prior convictions may be brought in to impeach the witnesses including the defendants, if they testify. The prior convictions must be less than 10 years old; however, that time period may be calculated from when the defendant is released from confinement. Also, older convictions can be used if prior notice is given to the opposing party.

Although juvenile adjudications are not admissible against the defendant, a witness may be impeached by juvenile adjudications only if the party seeking to admit the juvenile adjudications shows the following:

(1) The factual basis for the proven allegations of delinquency would have constituted a crime under the laws of the state of the juvenile court if committed by an adult at the time they were committed by the juvenile:
(2) The probative value of the evidence substantially outweighs the prejudicial effect of its admission; and
(3) The court finds that admission of the adjudication into evidence is necessary for a fair determination of the issue of guilt or innocence of the defendant.

The fact that there is an appeal pending on a conviction does not make the conviction inadmissible.

Effective Date for the bill
The act will become effective for all trials commencing on or after 7/1/05 .

HB 172 (Restitution Act of 2005) also passed both the House and the Senate and is effective July 1, 2005 . The Restitution Act provides that the court shall order restitution once the prosecution proves special damages. The restitution orders will then become civil judgments against the defendants.

SR 161 (joint study commission on juvenile justice reform) passed out of both the Senate and House.

HR 515 (House study commission on restructuring criminal penalties) passed out of the House.

For more information on other criminal justice bills, please check out "Summary of 2005 Legislation."

The General Assembly sine died on Thursday (3/31), one day short of the regular 40 day session.

Questions? Contact Cindy Wang