23 AAC 10.120. Testimony under subpoena; private hearings

(a) The victims' advocate may choose to compel by subpoena, at a specified time and place, the appearance of any person whom the victims' advocate reasonably believes may be able to give information and produce documents and objects relating to a matter under formal or informal investigation under AS 24.65. At the election of the victims' advocate, the subpoena may be issued

(1) in connection with a private hearing conducted under AS 24.65; or

(2) not in connection with a private hearing, but shall command the person subpoenaed to appear at a specified time and place to deliver documents and objects without providing testimony at that time.

(b) A subpoena issued by the victims' advocate extends to all parts of the state and must conform to the following:

(1) the subpoena shall command each person to whom it is directed to attend and give testimony or to produce records, information or objects under (a) of this section at a time and place specified in the subpoena;

(2) a subpoena duces tecum issued under (a) of this section shall describe the records, documents, objects or information sought;

(3) the subpoena shall bear the signature of the victims' advocate or the victims' advocate's designee and shall be certified by a notary of the state.

(c) If a subpoena is issued under (a) of this section, the person subpoenaed shall have 10 calendar days following the date of service of the subpoena to comply. The victims' advocate or a designee of the victims' advocate may extend the period described in this subsection upon written request of the person under subpoena for good cause shown by the applicant.

(d) Nothing prevents the victims' advocate from issuing more than one subpoena or conducting more than one hearing under this section whether involving the same matter or whether the matter is under formal or informal investigation.

(e) Notwithstanding (c) of this section, the victims' advocate may

(1) require the appearance of a person to give sworn testimony or produce documents and objects under (a) of this section at a specified time and place sooner than 10 days after the service of the subpoena

(A) if the victims' advocate reasonably believes that to do so will not significantly inconvenience the person subpoenaed or cause the person subpoenaed to incur substantial additional expense;

(B) if the delay in receipt of the sworn testimony, documents or objects may hinder or prejudice the investigation or render the testimony ineffectual; or

(2) schedule the appearance of the person sooner than 10 days after service of a subpoena with the consent of the recipient of the subpoena.

(f) A subpoena will be served by a designee of the victims' advocate or an employee of the office of victims' rights. Service of a subpoena upon a person named in it shall be made by delivering a copy of the subpoena to the person. Proof of service shall be established by affidavit of the person who served the subpoena at or about the time service is made. In the discretion of the victims' advocate, service of a subpoena may also be made by certified or registered United States mail. The returned delivery receipt shall be addressed so that it is returned to the office of victims' rights and shall constitute proof of service. A subpoena may also be served by the victims' advocate by facsimile with the consent of the justice agency or the person named in the subpoena. Proof of service by facsimile shall be conclusively established by the victims' advocate's facsimile activity report.

(g) A private hearing shall be presided over by the victims' advocate. The purpose of a private hearing shall be to investigate a complaint from a crime victim that a right guaranteed under the constitution and laws of the state has been violated with regard to their contact with a justice agency or a person. A private hearing held by the victims' advocate shall be conducted subject to the privileges recognized by court rule and statutes of this state and in an informal manner to the end that truth may be ascertained and proceedings justly determined. Except as specifically provided in this section, the Alaska Rules of Court, including the Alaska Rules of Evidence, the Alaska Rules of Civil Procedure, the Alaska Rules of Criminal Procedure, the Alaska Child in Need of Aid Rules, the Alaska Delinquency Rules, and the Alaska Administrative Rules, are inapplicable to hearings or proceedings, including the taking of sworn testimony, conducted before the victims' advocate. Witnesses appearing at a private hearing shall have the right to counsel at the witnesses' expense. The only persons permitted to be present at a private hearing during the taking of sworn testimony shall be the victims' advocate or an associate victims' advocate, members of the victims' advocate's staff, a court reporter if one is utilized, an interpreter or person to assist a witness who is hearing, speech or otherwise medically impaired when needed, the witness then under examination, and the witness's attorney if desired by the witness. Witnesses shall be examined individually outside the presence of other witnesses. Each witness shall be administered the following oath by a person authorized by law: "Do you solemnly swear or affirm upon oath that the testimony you are about to give in this proceeding will be the truth, the whole truth, and nothing but the truth?"

(h) When the victims' advocate seeks to obtain information, documents or objects from a person who has been properly subpoenaed, the person may not refuse to provide the material sought by claiming that the material is privileged unless the person asserts the privilege and the basis for the privilege in writing to the victims' advocate. If requested by the victims' advocate in writing, the written assertion of privilege shall be provided under oath. Nothing in this section shall be construed to diminish the right of the victims' advocate to require the person asserting the claimed privilege to assert it, and the basis for asserting it, under oath at a hearing conducted under AS 24.65.

( i ) If the person described in (h) of this section is a public employee who refuses to provide the material of the criminal justice agency sought by claiming that the material is privileged, the commissioner of the department or the head of the justice agency involved shall assert the privilege and the basis for the privilege, in writing to the victims' advocate. If requested by the victims' advocate in writing, the written assertion of privilege and the basis for asserting the privilege shall be provided under oath by the commissioner of the department or the head of the justice agency involved. Nothing in this section shall be construed to diminish the right of the victims' advocate to require the person asserting the privilege to assert the claimed privilege and the basis for asserting it under oath at a hearing conducted under AS 24.65.

(j) In any case in which a person refuses to provide material sought by claiming a privilege under (h) or ( i ) of this section the victims' advocate will consider the assertion of privilege and may seek review of the claim of privilege in the superior court under this subsection by instituting enforcement proceedings under AS 24.65. In that event, the victim's advocate will request the superior court to review the disputed material in camera and to decide the issue on an expedited basis and in accordance with ( l ) of this section.

(k) The provisions of Rule 30.1 of the Alaska Rules of Civil Procedure apply to testimony taken during a private hearing under AS 24.65. Upon request, the victims' advocate may permit the taking of testimony telephonically at a private hearing. An audio or audio-visual deposition may be used for any purpose and under any circumstances in which a stenographic deposition may be used. A subpoena by the victims' advocate issued for attendance at a hearing for the taking of testimony must state that the deposition will be recorded by audio or audio-visual means. If a court reporter will not be used to record the deposition, the subpoena must also state this fact.

( l ) Enforcement of a subpoena to compel the giving of testimony or the production of documents shall be secured by proceedings brought in the superior court upon application of the victims' advocate or an associate victims' advocate in accordance with AS 24.65.130 (b) under the provisions of Rule 90 of the Alaska Rules of Civil Procedure. The victims' advocate will request the court to give calendaring preference to enforcement proceedings brought by the victims' advocate under this section.

(m) A witness subpoenaed by the victims' advocate who resides less than 100 miles from the office of victims' rights is not entitled to a witness fee if the witness is an employee of a justice agency, a political subdivision of the state, or the state, or a person contracted with by a justice agency, a political subdivision of the state, or the state regarding the matter that is the substance of the subpoena. All other witnesses shall be paid a witness fee as prescribed for a witness in a court action if the witness actually testifies and submits a written request for payment of a witness fee on a form prescribed by the victims' advocate for that purpose and in accordance with this title. A witness that resides more than 100 miles from the office of victims' rights or who is not an employee of a justice agency, a political subdivision of the state, or the state, or a person contracted with by a justice agency, a political subdivision of the state, or the state regarding the matter which is the substance of the subpoena who is not otherwise eligible for travel, lodging, and per diem reimbursement by the witness's employer is entitled to receive

(1) non-expert witness attendance fees as prescribed for a witness in court actions;

(2) reimbursement of transportation expenses in accordance with standards established by the Department of Administration under AS 39.20.160 for required travel in excess of 100 miles round trip from the witness's residence; and

(3) reimbursement of food and lodging expenses in accordance with standards established by the Department of Administration under AS 39.20.160 for each day of actual attendance and for each day of reasonable and necessary travel to and from the office of victims' rights if the witness resides at a point so distant from the office of victims' rights that a return to the residence from day to day is not practicable.

History: Eff. 6/27/2004, Register 170

Authority: AS 24.65.090

AS 24.65.120

AS 24.65.130

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