2005 Legislative Session Report #7

During legislative days 29 through 34, the FY06 general budget (HB 85) passed the Senate. However, because the Senate version differed from the House's version, a conference committee has been appointed to work out the differences. The conference committee has met several times this week to work on the budget. Regardless, the Standards Council received the same amount of $42.079 million from the Senate as it did from the House.

The General Oversight Committee for the Standards Council will meet on Wednesday (3/23) morning.

On other legislative matters, HB 366 passed the House with the committee substitute to HB 316 (juvenile public defenders) attached to it. However, the provision of the juvenile assistant public defenders was made subject to funding. HB 366 then was passed out of the full Senate Judiciary Committee on Tuesday.

SB 203 (recovery of attorney's fees) passed out of the Senate and then was passed out of the full House Judiciary Committee on Tuesday with the provisions from HB 192 and HB 561 attached to it.

HB 771 ($10 additional civil filing fee for all civil actions in the lower courts for county indigent defense fund) was filed in the House.

HB 170 (Criminal Justice Act of 2005) passed out of the House with a vote of 130 to 40. It also had two floor amendments.

Here is a summary of the floor substitute 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 and felony defense strikes remained the same at 4 and 12, respectively. However, death penalty strikes were reduced from 20 to 18. 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 was also increased to accommodate the increase of strikes for the State.

If multiple defendants are involved, then the court may allow the state to have the same number of strikes as the defendants jointly have.

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.

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 conclusion of jury charges or if the defendant has waived a jury trial then at the time the case is submitted to the court for judgment.

Impeachment
Any party may attack the credibility of a witness. Character evidence 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 by reputation testimony. Prior convictions may be brought in to impeach the witnesses including the defendants, if they testify. The prior convictions must be less than 7 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 cases indicted or accused on or after 7/1/0 .

The Senate Judiciary committee will have a hearing on both HB 170 and HB 172 (Restitution Act of 2005) next Monday (3/21) at 9:00 AM.

The House Judiciary Non-Civil committee will meet on SB 2 (equal strikes) upon adjournment on Monday (3/21).

SR 161 (joint study commission on juvenile justice reform) passed out of the Senate and then passed out of the House Judiciary Non-Civil committee on Tuesday.

HB 325 (transferring of SB 440 cases by superior courts) was attached to SB 136 by the House Judiciary Non-Civil committee and passed out of committee also on Tuesday.

HR 515 (House study commission on restructuring criminal penalties) passed out of the House Judiciary Non-Civil committee on Thursday.

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

The General Assembly will be in session Monday (3/21) for legislative day 35, Tuesday (3/22) for legislative day 36, Thursday (3/24) for legislative day 37, Tuesday (3/29) for day 38, Thursday (3/31) for legislative day 39, and will sine die on Friday (4/1) for legislative day 40.