AS Title 12, Chapter 50: Witnesses

Article 1. Uniform Act to Secure Attendance in Criminal Proceedings. Chapter 50. Witnesses. Sec. 12.50.010. Witness subpoenaed in this state to testify in another state. (a) If a judge of a court of record in any state which by its laws has made provision for commanding persons within the state to attend and testify in this state certifies under the seal of the court that there is a criminal prosecution pending in the court, or that a grand jury investigation has commenced or is about to commence, that a person within this state is a material witness in that prosecution or grand jury investigation, and that the presence of that person will be required for a specified number of days, then, upon presentation of the certificate to a judge of a court of record in the judicial district in which the person is, the judge shall fix a time and place for a hearing and shall make an order directing the witness to appear at a time and place certain for the hearing. (b) If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending or grand jury investigation has commenced or is about to commence will give to the witness protection from arrest and the service of civil and criminal process, the judge shall issue a subpoena, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending or where a grand jury investigation has commenced or is about to commence at a time and place specified in the subpoena. In any such hearing the certificate shall be prima facie evidence of all of the facts stated therein. (c) If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be immediately brought before the judge for said hearing; and if the judge at the hearing is satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof of this desirability, the judge may, in lieu of issuing subpoena, order that the witness be immediately taken into custody and delivered to an officer of the requesting state. (d) If the witness who is subpoenaed as provided in this section, after being paid or tendered by a properly authorized person a sum equivalent to the cost of air fare round trip passage on a certificated carrier or such prepaid passage and reasonable incidental travel allowance for going to and from airports plus $20 per day for each day that the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the subpoena, the witness shall be punished in the manner provided for the punishment of a witness who disobeys a subpoena issued from a court of record in this state. Sec. 12.50.020. Witness from another state subpoenaed to testify in this state. (a) If a person in a state which by its laws has made provision for commanding persons inside its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state as a material witness in a criminal action pending in a court of record of this state, or in a grand jury investigation which has commenced or is about to commence, a judge of the court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure attendance in this state. This certificate shall be presented to a judge of a court of record in the county or judicial district in which the witness is found. This order of a court in the other state delivering custody of a witness to an officer of this state shall be sufficient authority to an officer of this state to take the witness into custody and hold the witness until discharged by a court of this state. (b) If the witness is subpoenaed to attend and testify in this state the witness shall be tendered a sum equivalent to the cost of air fare round trip passage on a certificated carrier or such prepaid passage and reasonable incidental travel allowance for going to and from airports plus $20 per day for each day that the witness is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the subpoena shall not be required to remain within the state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If the witness, after coming into this state, fails without good cause to attend and testify as directed in the subpoena, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a subpoena issued from a court of record in this state. Sec. 12.50.030. Immunity of witness from arrest or service of process. If a person comes into this state in obedience to a subpoena directing the person to attend and testify in this state, the person shall not, while in this state pursuant to the subpoena, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before entering this state under the subpoena. Sec. 12.50.040. Immunity of foreign witness passing through state from arrest or process. If a person passes through this state while going to another state in obedience to a subpoena to attend and testify in that state or while returning therefrom, the person shall not, while so passing through this state, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before entering this state under the subpoena. Sec. 12.50.050. Party seeking witness. The right to obtain witnesses under AS 12.50.010 — 12.50.080 in criminal proceedings shall extend to the state or a defendant. Witness fees shall be paid by the party calling the witness, except as provided in Rule 17(b), Alaska Rules of Criminal Procedure. If the time estimate in the certificate of the requesting court is exceeded, the nonindigent defendant shall be required to tender additional per diem or post bond to insure payment of total witness fees. Sec. 12.50.060. Uniformity of interpretation. AS 12.50.010 — 12.50.080 shall be so interpreted and construed as to effectuate the general purpose to make uniform the laws of the states which enact similar legislation. Sec. 12.50.070. Definitions. In AS 12.50.010 — 12.50.080, (1) “state” means a state, territory of the United States, and the District of Columbia; (2) “subpoena” includes a summons in a state where a summons is used in lieu of subpoena, order, or other notice requiring the appearance of a witness; the word subpoena also includes a subpoena duces tecum; (3) “witness” includes a person whose testimony is desired in a proceeding or investigation by a grand jury or in a criminal action, prosecution, or proceeding. Sec. 12.50.080. Short title. AS 12.50.010 — 12.50.080 may be cited as the Uniform Act to Secure Attendance of Witnesses in Criminal Proceedings. Secs. 12.50.090 — 12.50.100. Material witnesses. [Repealed, § 2 ch 20 SLA 1966. For current law, see AS 12.30.050 .] For current law, see AS 12.30.050 . For current law, see AS 12.30.050 . Article 2. Witness Immunity. Sec. 12.50.101. Immunity of witnesses. (a) If a witness refuses, on the basis of the privilege against self-incrimination, to testify or provide other information in a criminal proceeding before or ancillary to a court or grand jury of this state, and a judge issues an order under (b) of this section, the witness may not refuse to comply with the order on the basis of the privilege against self-incrimination. If the witness fully complies with the order, the witness may not be prosecuted for an offense about which the witness is compelled to testify, except in a prosecution based on perjury, giving a false statement or otherwise knowingly providing false information, or hindering prosecution. (b) In the case of an individual who has been or may be called to testify or provide other information in a criminal proceeding before or ancillary to a court or a grand jury of this state, a superior or district court for the judicial district in which the proceeding is or may be held shall issue, upon the application of the attorney general or the attorney general's designee in accordance with (d) of this section, an order requiring the individual to give testimony or provide other information that the individual refuses to give or provide based on the privilege against self-incrimination. (c) An order issued under (b) of this section is effective when communicated to the individual specified in the order. (d) The attorney general or the attorney general's designee may apply for an order under (b) of this section when, in the judgment of the attorney general or the attorney general's designee, (1) the testimony or other information may be necessary to the administration of criminal justice; and (2) the individual who is the subject of the application has refused or is likely to refuse to testify or to provide other information on the basis of the privilege against self-incrimination. (e) If a witness refuses, or there is reason to believe the witness will refuse, to testify or provide other information based on the privilege against self-incrimination, and if the attorney general or the attorney general's designee has not applied for an order under (b) of this section, the court shall inform the witness of the right to be represented by an attorney, and that an attorney will be appointed for the witness if the witness qualifies for counsel under AS 18.85 . The court shall recess the proceeding to allow the witness to consult with the attorney for the witness. (f) If the attorney general or the attorney general's designee declines to seek an order under (b) of this section after the witness has had an opportunity to consult with an attorney, and the witness continues to refuse to testify or provide other information, the court shall hold a hearing to determine the validity of the claim of privilege by the witness. The hearing shall be in camera. (g) At the hearing under (f) of this section, the attorney for the witness, in the form of a proffer, shall describe the testimony or other information that the witness claims is privileged. The proffer must include a description of how the testimony or other information could connect the witness with a crime. The proffer is privileged and inadmissible for any other purpose. If the proffer establishes a factual basis that there is a real or substantial danger that the testimony or other information to be compelled would support a conviction or would furnish a link in the chain of evidence leading to conviction for a crime, the court may find that the witness has a valid claim of privilege. (h) If the court finds that the witness has a valid claim of privilege, it shall advise an attorney designated by the attorney general of that finding and inform the attorney of the category or categories of offense to which the privilege applies: a higher-level felony, a lower-level felony, or a misdemeanor. If the designated attorney decides that granting immunity to the witness is appropriate, the designated attorney shall inform the prosecution of that decision, and shall deliver or cause to be delivered a letter to the witness, or an attorney for the witness, granting immunity to the witness. The designated attorney may not disclose the category of offense to anyone. (i) In this section, (1) “higher-level felony” means an unclassified or class A felony; (2) “lower-level felony” means a class B or class C felony; (3) “other information” means books, papers, documents, records, recordings, or other similar material; (4) “proffer” means a written or oral statement by the attorney for the witness, stating the attorney's good faith belief of the substance of the witness's testimony or other information. Article 3. Temporary Detention and Identification of Persons. Sec. 12.50.201. Temporary detention and identification of persons. (a) A peace officer may temporarily detain a person under circumstances that give the officer reasonable suspicion that (1) the person witnessed or was at or near the scene of the commission of a felony crime against a person under AS 11.41 , arson under AS 11.46.400 or 11.46.410, criminal mischief under AS 11.46.475 or 11.46.480, or misconduct involving weapons under AS 11.61.190 or 11.61.195(a)(3); (2) the person has information of material aid in the investigation of that crime; and (3) the temporary detention of the person is reasonably necessary to obtain or verify the identification of the person, to obtain an account of the crime, to protect a crime victim from imminent harm, or for other exigent circumstances. (b) A peace officer who temporarily detains a person under (a) of this section may (1) detain the person only as long as reasonably necessary to accomplish the purposes of that subsection; (2) take one or more photographs of the person, if photographs can be taken without unreasonably delaying the person or removing the person from the vicinity; and (3) if the person does not provide valid government-issued photographic identification or other valid identification that the officer finds to be reliable to identify the person, or the officer has reasonable suspicion that the identification is not valid, (A) serve a subpoena on the person to appear before the grand jury where the crime was committed; and (B) take the person's fingerprint impressions if (i) the crime under investigation is murder, attempted murder, or misconduct involving weapons under AS 11.61.190 or 11.61.195(a)(3); and (ii) fingerprint impressions can be taken without unreasonably delaying the person or removing the person from the vicinity. (c) A peace officer electing to serve a subpoena under (b) of this section may not require the person to sign the subpoena or another document. The officer or the subpoena must advise the person that failure to honor the subpoena may be punishable as criminal contempt of court under AS 09.50.010 . A person receiving a subpoena to testify under (b) of this section may request the district attorney to withdraw the subpoena if, before the grand jury proceeding for which the person has been served a subpoena to appear, the person provides the peace officer who served the subpoena or the lead investigator with valid government-issued photographic identification or other valid identification that the officer or lead investigator finds to be reliable to identify the person. (d) Photographs or fingerprints taken under (b) of this section (1) may be used for identification purposes only, and not for criminal investigative purposes unless it is determined that the person is suspected of committing a crime within the scope of the investigation; and (2) must be destroyed upon the earlier of the following occurrences unless it is determined that the person is suspected of committing a crime within the scope of the investigation: (A) the person has testified in a grand jury or court proceeding in connection with the matter under investigation; or (B) completion of the prosecution of the crime being investigated. (e) This section does not limit the authority of peace officers to investigate crimes, to collect evidence, to photograph crime scenes, evidence, or bystanders, to issue lawful court process, or to ensure the welfare of crime victims or other persons. (f) A person who refuses or resists the taking of photographs or fingerprints under this section commits a class B misdemeanor, punishable as provided in AS 12.55 , except that a sentence of imprisonment, if imposed, may not exceed 10 days. (g) Notwithstanding (f) of this section, if the person establishes that the person does not have information of material aid in the investigation of the crime, it is within the discretion of the court to determine that this is a civil matter punishable by a civil fine of not more than $1,000.