ALASKA RULES OF COURT

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COMMENTARY TO ALASKA RULES OF EVIDENCE

Table of Contents

ARTICLE I. GENERAL PROVISIONS

Rule

101 Scope and Applicability.

(a) General Applicability.

(b) Rules of Privilege.

(1) Preliminary Questions of Fact.

(2) Miscellaneous Proceedings.

102 Purpose and Construction.

103 Rulings on Evidence.

(a) Effect of Erroneous Ruling.

(b) Record of Offer and Ruling.

(d) Plain Error.

104 Preliminary Questions.

(a) Questions of Admissibility Generally.

(b) Relevancy Conditioned on Fact.

(d) Testimony by Accused.

(e) Weight and Credibility.

105 Limited Admissibility.

106 Remainder of, or Related Writings or Recorded Statements.

ARTICLE II. JUDICIAL NOTICE

201

202

203

Judicial Notice of Fact.

(a) Scope of Rule.

(b) General Rule.

Judicial Notice of Law.

(a) Scope of Rule.

(b) Without Request—Mandatory.

(d) With Request—Mandatory.

Procedure for Taking Judicial Notice.

(a) Determining Propriety of Judicial Notice.

(b) Time of Taking Notice.

ARTICLE III. PRESUMPTIONS

301

302

303

Presumptions in General in Civil Actions and Proceedings.

(a) Effect.

(b) Prima Facie Evidence.

Applicability of Federal Law in Civil Actions and Proceedings.

Presumptions in General in Criminal Cases.

(a) Effect.

(b) Prima Facie Evidence.

ALASKA COURT RULES

ARTICLE IV. ADMISSIBILITY OF RELEVANT EVIDENCE

401

402

403

404

405

406

407

408

409

410

411

412

Definition of Relevant Evidence.

Relevant Evidence Admissible—Exceptions—Irrelevant Evidence Inadmissible.

Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.

Character Evidence Not Admissible to Prove Conduct—Exceptions—Other Crimes.

(a) Character Evidence Generally.

(b) Other Crimes, Wrongs, or Acts.

Methods of Proving Character.

(a) Reputation or Opinion.

(b) Specific Instances of Conduct.

Habit—Routine Practice.

Subsequent Remedial Measures.

Compromise and Offers to Compromise.

Payment of Medical and Other Expenses.

Inadmissibility of Plea Discussions in Other Proceedings.

Liability Insurance.

Evidence Illegally Obtained.

ARTICLE V. PRIVILEGES

INTRODUCTORY COMMENT

501

502

503

504

505

506

507

508

Privileges Recognized Only as Provided.

Required Reports Privileged by Statute.

Lawyer-Client Privilege.

(a) Definitions.

(b) General Rule of Privilege.

(d) Exceptions.

(1) Furtherance of Crime or Fraud.

(2) Claimants Through Same Deceased Client.

(3) Breach of Duty by Lawyer or Client.

(4 ) Document Attested by Lawyer.

(5) Joint Clients.

Physician and Psychotherapist—Patient Privilege.

(a) Definitions.

(b) and (c) General Rule of Privilege—Who May Claim the Privilege.

(d) Exceptions.

(1) Condition or Element of Claim or Defense.

(2) Crime or Fraud.

(3) Breach of Duty Arising Out of Physician-Patient Relationship.

(4) Proceedings for Hospitalization.

(5) Required Report.

(6) Examination by Order of Judge.

(7) Criminal Proceeding.

Husband-Wife Privileges.

(a) Spousal Immunity.

(1) Spouse Immunity

(2) Exceptions.

(b) Confidential Marital Communications.

(1) General Rule.

(2) Exceptions.

Communications to Clergymen.

(a) Definitions.

(b) General Rule of Privilege.

Political Vote.

Trade Secrets.

EVIDENCE RULES COMMENTARY

509

510

511

512

Identity of Informer.

(a) Rule of Privilege.

(b) Who May Claim.

(1) Voluntary Disclosure—Informer a Witness.

(2) and (3) Testimony on Merits—Legality of Obtaining Evidence.

Waiver of Privilege by Voluntary Disclosure.

Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege.

Comment Upon or Inference From Claim of Privilege—Instruction.

(a) Comment or Inference Not Permitted.

(b) Claiming Privilege Without Knowledge of Jury.

(d) Application—Self-Incrimination.

ARTICLE VI. WITNESSES

601

602

603

604

605

606

607

608

609

610

611

612

613

614

615

Competency of Witnesses.

Lack of Personal Knowledge.

Oath or Affirmation.

Interpreters.

Competency of Judge as Witness.

Competency of Juror as Witness.

(a) At the Trial.

(b) Inquiry Into Validity of Verdict on Indictment.

Who May Impeach or Support.

Evidence of Character and Conduct of Witness.

(a) Opinion and Reputation Evidence of Character.

(b) Specific Instances of Conduct.

Impeachment by Evidence of Conviction of Crime.

(a) General Rule.

(b) Time Limit.

(d) Effect of Pardon, Annulment, or Certificate of Rehabilitation.

(e) Juvenile Adjudications.

(f) Pendency of Appeal.

Religious Beliefs or Opinions.

Mode and Order of Interrogation and Presentation.

(a) Control by Court.

(b) Scope of Cross-Examination.

Writing Used to Refresh Memory.

(a) While Testifying.

(b) Before Testifying.

(d) Failure to Produce.

Prior Inconsistent Statements, Bias and Interest of Witnesses.

(a) General Rule.

(b) Foundation Requirements.

Calling and Examination of Witnesses by Court.

(a) Calling by Court.

(b) Examination by Court.

Exclusion of Witnesses.

ARTICLE VII. OPINION TESTIMONY

701

Opinion Testimony by Lay Witnesses.

ALASKA COURT RULES

702

703

704

705

706

Testimony by Experts.

Basis of Opinion Testimony by Experts.

Opinion on Ultimate Issue.

Disclosure of Facts or Data Underlying Expert Opinion.

(a) Disclosure of Facts.

(b) Admissibility.

Court Appointed Experts.

(a) Appointment.

(b) Disclosure of Appointment.

ARTICLE VIII. HEARSAY

INTRODUCTORY REPORTER’S COMMENT

801

802

803

804

805

806

Definitions.

(a) Statement.

(b) Declarant.

(d) Statements Which are not Hearsay.

(1) Prior Statement by Witness.

(2) Admissions.

Hearsay Rule.

Hearsay Exceptions—Availability of Declarant Immaterial.

(1) and (2) Present Sense Impression—Excited Utterance.

(3) When Existing Mental, Emotional, or Physical Condition.

(4) Statements for Purposes of Medical Diagnosis or Treatment.

(5) Recorded Recollection.

(6) Business Records.

(7) Absence of Records.

(8) Public Records and Reports.

(9) Records of Vital Statistics.

(10) Absence of Public Record or Entry.

(11) Records of Religious Organizations.

(12) Marriage, Baptismal, and Similar Certificates.

(13) Family Records.

(14) Records of Documents Affecting an Interest in Property.

(15) Statements in Documents Affecting an Interest in Property.

(16) Statements in Ancient Documents.

(17) Market Reports, Commercial Publications.

(18) Learned Treatises.

(19), (20) and (21) Reputation Concerning Personal or Family History—Reputation Concerning Boundaries or

General History—Reputation as to Character.

(22) Judgment as to Personal, Family, or General History, or Boundaries.

(23) Other Exceptions.

Hearsay Exceptions—Declarant Unavailable.

(a) Definition of Unavailability.

(b) Hearsay Exceptions.

(1) Former Testimony.

(2) Statement Under Belief of Impending Death.

(3) Statement Against Interest.

(4) Statement of Personal or Family History.

(5) Other Exceptions.

Hearsay Within Hearsay.

Attacking and Supporting Credibility of Declarant.

EVIDENCE RULES COMMENTARY

ARTICLE IX. DOCUMENTARY EVIDENCE

901

902

903

Requirement of Authentication or Identification.

(1) Testimony of witness with knowledge.

(2) Nonexpert opinion on handwriting.

(3) Comparison by trier or expert witness.

(4) Distinctive characteristics and the like.

(5) Voice identification.

(6) Telephone conversations.

(7) Public records or reports.

(8) Ancient documents or data compilation.

(9) Process or System.

(10) Methods provided by statute or rule.

Self-Authentication.

(1) Domestic Public Documents Under Seal.

(2) Domestic Public Documents Not Under Seal.

(3) Foreign Public Documents.

(4) Certified Copies of Public Records.

(5 ) Official Publication.

(6) Newspapers and Periodicals.

(7) Trade Inscriptions and the Like.

(8) Acknowledged Documents.

(9) Commercial Paper and Related Documents.

(10) Presumptions Created by Law.

Subscribing Witness’ Testimony Unnecessary.

ARTICLE X. WRITINGS

1001 Definitions.

(1) Writings and Recordings.

(2) Photographs.

(3) Original.

(4) Duplicate.

1002 Requirement of Original.

1003 Admissibility of Duplicates.

1004 Admissibility of Other Evidence of Contents.

(a) Original Is Lost or Destroyed.

(b) Original Not Obtainable.

(d) Collateral Matters.

1005 Public Records.

1006 Summaries.

1007 Testimony or Written Admission of Party.

1008 Functions of Court and Jury.

ARTICLE XI. TITLE

1101 Title.

ALASKA COURT RULES

Introduction

The Commentary to the Alaska Rules of Evidence was prepared by Professor Stephen A. Saltzburg, who served as

Reporter for the Rules of Evidence. Some changes to the Commentary have been made by the staffs of the Administrative

Office and the Supreme Court Clerk’s Office to reflect the form of the rules as ultimately adopted by the Alaska Supreme

Court. This Commentary has not been adopted or approved by the Supreme Court, but is being published for informational

purposes and to assist the users of the Rules of Evidence.

The Alaska Supreme Court extends its thanks to Professor Saltzburg and to the members of the Advisory Committee on

the Rules of Evidence for the considerable time and effort they have devoted to the preparation of the rules and of this

Commentary. Serving on the Advisory Committee were Alexander O. Bryner, Chairman; Superior Court Judges James R.

Blair, Victor D. Carlson, William H. Sanders, and Thomas B. Stewart; and attorneys Walter L. Carpeneti, Richard O.

Gantz, Patrick Gullufsen, and Dick L. Madsen.

The Commentary to the Alaska Rules of Evidence which follows does not necessarily reflect amendments which have been

made to the Alaska Rules of Evidence after the Evidence Rules were originally adopted. Any amendment after the Rules

were added by SCO 364, effective August 1, 1979, would be reflected in the legislative history note following each

Evidence Rule.

The rules of evidence have not been regarded as applicable

ARTICLE I. GENERAL PROVISIONS

to sentencing or probation proceedings, where great reliance is

placed upon the presentence investigation and report. This is in

Rule 101. Scope and Applicability.

accord with previous law. Cf. State v. Sears, supra.

(a) General Applicability. There are three courts in the

Warrants for arrest, criminal summonses, and search

Alaska judicial system—the Supreme Court, the Superior

warrants are issued upon complaint or affidavit showing

Court, and the District. Trials, both civil and criminal, are

probable cause. The nature of the proceedings make

conducted at the Superior Court and District Court level. The

application of the formal rules of evidence inappropriate and

judges who sit on these courts should find the new Rules of

impractical.

Evidence no more difficult to apply—and hopefully somewhat

easier—than common law rules. But magistrates, whose

Because summary contempt proceedings are not full

authority is delimited under AS 22.15, are working on a part

adversary contests but immediate responses to special

time basis and may find the New Rules difficult. Nevertheless,

problems of misbehavior, the rules of evidence do not apply.

experience has shown that they exhibit a workable grasp of the

Habeas corpus hearings are treated like all other cases under

existing rules of evidence. Thus, this subdivision states that the

subdivision (b), supra, and the rules apply in these hearings.

Rules of Evidence shall apply in cases tried before magistrates

as well as judges.

These rules are not applicable in areas directly covered by

other rules promulgated by the Alaska Supreme Court. For

example, Criminal Rule 5.1(d) as amended (preliminary

examinations in criminal cases) and Criminal Rule 6(r) (grand

jury) govern the admission of evidence in their respective

areas. See, State v. Gieffels, 554 P.2d 460 (Alaska 1976).

Children’s Rules specifying special rules of evidence for

children’s proceedings will remain in effect (e.g., 13(a) (2)),

unless they are superseded by these Rules (e.g., 17(a)).

(b)0Rules of Privilege. This subdivision implements the

privilege article of the rules. “It recognizes that confidentiality

once destroyed cannot be restored, and that a privilege is

effective only if it bars all disclosure at all times.” 5

Weinstein’s Evidence Paragraph 1101 [1].

does not decide the reach of constitutional principles as applied

to admission of illegally seized evidence. See State v. Sears,

Reporter’s Comment to that rule.

(1)0Preliminary Questions of Fact. Paragraph (1) states for

convenience, the provisions of Rule 104(a), supra. See

Reporter’s Comment to that rule.

(2)0Miscellaneous Proceedings. Extradition and rendition

proceedings are essentially administrative, and traditionally the

rules of evidence have not applied. 1 Wigmore § 4(6).

Rule 102.

Purpose and Construction.

Alaska Rule 102 copies the text of Federal Rule 102.

While this Rule provides that all of the evidence rules shall

be interpreted so as “to secure…promotion of growth and

development of the law of evidence to the end that truth may

be ascertained,” this should not be read to encourage the search

for truth at any cost. Another end is also sought: that

“proceedings [may be] justly determined.” Occasionally,

situations will arise where justice requires that accuracy in

fact-finding gives way to a more significant social goal.

Deciding when proceedings are “justly determined” requires

an examination of federal and state constitutional protections

(see, e.g., U.S. Const., amends, IV and V; Alaska Const., art. I,

§ 22; Ravin v. State, 537 P.2d 494, 504 (Alaska 1975)) and

legislative attempts to protect individuals from official

intrusion, including judicial intrusion. See, e.g., AS 47.10.080

(g). Evidence that is apparently probative may be excluded to

create disincentives to governmental abuses (see, e.g.,

Lauderdale v. State, 548 P2d 376 (Alaska 1976 (Alaska 1976)

to recognize and perhaps to foster socially desirable private

conduct (see, e.g., Rules 407 & 410, infra) to protect personal

privacy (see, e.g., Rule 505 infra) and to enable persons to

maximize the effectiveness of professional counseling (see,

e.g., Rules 503 & 504).

EVIDENCE RULES COMMENTARY

In short, the search for truth is important in its practical

impact and philosophical overtones. Sometimes the search for

fact-finding precision itself may have constitutional roots. See

Davis v. Alaska, 415 U.S. 308, 39 L.Ed. 2d 347 (1974). But it

is not the end all of a system of justice; other values must be

weighed.

“Insuring that ‘proceedings [are] justly determined’ as this

Rule states is by no means a simple task.” K. Redden & S.

Saltzburg, Federal Rules of Evidence Manual 15 (2d ed. 1977).

Rule 103.

Rulings on Evidence.

(a)0Effect of Erroneous Ruling. Subdivision (a) is a codification of the basic rules of offering evidence and objecting to

the admission of evidence. It corresponds closely with the

substance of Rules 4 and 5 of the Uniform Rules of Evidence

and Rules 6 and 7 of the Model Code of Evidence (1942). The

Rule is designed to reject the Court of Exchequer’s misguided

view in Crease v. Barrett, 1 C.M.&R. 919 (1835), that any

error might require reversal. In the case of a ruling admitting

evidence, to constitute grounds for a reversal an error must

affect a substantial right of the party and a timely objection

stating the specific grounds of the objection must be made. If

the ruling is to exclude evidence, the substance of the offered

evidence must be made known to the court in order to ascertain

on appeal whether a substantial right has been affected. While

noting the existence of basic requirements in the form, timing,

and specificity of objections, this rule does not attempt to set

forth details or nuances which are better dealt with on a case

by case basis. The common law tradition requiring prompt

challenges to questions, to offers of evidence, and to

qualifications of witnesses, and reasonable prompt motions to

strike is continued in these general rules. No formal exceptions

need be noted. See Morgan, Basic Problems of Evidence 53-54

(1962).

In rejecting the notion of automatic reversal on the basis of

any error whatsoever, this rule does not prescribe any

particular test for distinguishing reversible from harmless

errors. The one certain rule is that a constitutional error

requires reversal unless an appellate court can be certain

beyond a reasonable doubt that the error did not influence the

verdict. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705

(1967). There is disagreement on the proper test for

determining when non-constitutional errors are harmless. See

generally, R. Traynor, The Riddle of Harmless Error (1970).

Saltzburg, The Harm of Harmless Error, 59 Va. L. Rev. 988

(1973). Although harmless error rules can be found in Rule

47(a), Alaska R. Crim. P., and Rule 61, Alaska R. Civ. P., no

formula is offered in either place for determining when an

error affects substantial rights. There is some authority in

existing case law for distinguishing the tests of harmlessness

used in criminal and civil cases. Compare Love v. State, 457

P.2d 622 (Alaska 1969), Daniels v. State, 388 P2d 813 (Alaska

1964), and Biele v. State, 371 P.2d 811, 814 (Alaska 1962) with

Zerbinos v. Lewis, 394 P.2d 886 (Alaska 1964). But there is

also authority suggesting that the civil test closely resembles

the criminal test. See Howarth v. Pfeifer, 423 P.2d 680 (Alaska

1967). This Rule does not attempt to set forth any test; that is

left for adjudication, the approach preferred in Love v. State,

and more recently in McCracken v. Davis, 560 P.2d 771

(Alaska 1977). For recent cases invoking the doctrine of

harmless error, see, Hayes v. State, 581 P.2d 221 (Alaska 1978)

and Priest v. Lindig, 583 P.2d 173 (Alaska 1978).

(b)0Record of Offer and Ruling. Like its federal

counterpart, this section borrows from the wording of a

preexisting rule of civil procedure, rule 43(c). The obvious

purpose of the rule is to provide an appellate tribunal with an

accurate record of the trial proceedings—i.e., to ensure that the

specific objections and proper offers of proof are accurately

reflected in the record. “It is designed to resolve doubts as to

what testimony the witness would have in fact given, and, in

nonjury cases, to provide the appellate court with material for

possible final disposition of the case in the event of reversal of

a ruling which excluded evidence…. Application is made

discretionary in view of the practical impossibility of formulating a satisfactory rule in mandatory terms.” Fed. R. Evid.

103(b), Advisory Committee Note (citation omitted).

pointless if the jury hears the evidence as part of an offer of

proof. Hence, this subdivision provides that proceedings

surrounding rulings on evidence should be conducted as much

as possible outside the presence of the jury. As reflected in the

note accompanying subdivision (a), the Rule does not specify

the form that an offer of proof will take. Subdivision (b)

recognizes, however, that the trial judge may require a question

and answer format. When this is the format, the questions and

answers should be asked outside the jury’s hearing. While this

subdivision should have its principal impact on offers of proof,

arguments on extended objections should also be outside the

presence of the jury, if practicable, since rulings on preliminary

questions, and law and argument relating thereto, are the

province of the judges alone.

(d)0Plain Error. This subdivision incorporates the doctrine

of plain error found in Alaska case law, Stork v. State, 559 P2d

99 (Alaska 1977), Merrill v. Faltin, 430 P2d 913 (Alaska

1967); and Rule 47(b), Alaska R. Crim. P., [modeled after Fed.

R. Crim. P. 52(b)]. Most codifications have included some

provision resembling this one. The 1974 revision of the

Uniform Rules of Evidence, for example, includes a similar

provision but omits the word “plain.” Maine Rules of

Evidence, based on the Federal rules of Evidence, uses the

word “obvious” instead of “plain.” Maine Rule of Evidence

103(d). There is apparently some worry about the ambiguity of

the plain error concept. The Report of the Committee on the

Revision of the Law of Evidence to the Supreme Court of New

Jersey (1955) stated the general view of plain error:

Our courts have been loathe to apply this escape in the

case of the failure to interpose timely objection to the

introduction of evidence…The policy behind the necessity

for timely objection is obvious; the escape apparently will

only be applied where a shocking miscarriage of justice

would result. It seems desirable that the “plain error” rule be

retained to take care of extreme cases.

No precise formula for determining when the plain error

doctrine should be invoked is offered in the Rule. This, like the

harmless error test, is left for a case by case determination.

It is arguable that plain error is a principle that should be

excluded from rules governing trial procedure, since it relates

to the willingness of appellate courts to review claims not

raised below. Subdivision (d) is included in these Rules for

ALASKA COURT RULES

these reasons: 1) to promote uniformity with the Federal Rules;

2) to negate any implication that there is no such doctrine; 3) to

alert the trial judge that intervention may be necessary when

plain error would result in reversal on appeal; 4) to also remind

the state appellate courts that invocation of the doctrine may

remove the need for federal scrutiny of state judgments.

If a federal court is going to review a criminal

conviction and perhaps set it aside in a federal habeas

corpus proceeding, the state may feel it would rather

consider the error in the first instance itself, and may utilize

the doctrine of plain error to do so.

Saltzburg, Another Ground for Decision-Harmless Trial

Court Errors, 47 Temp. L. Q. 193, 200-01 n.25 (1974).

Applying the plain error concept has not been easy for most

appellate courts, and it has not been easy for the Alaska

Supreme Court. See, e.g., Stork v. State, 559 P2d 99 (Alaska

1977); Bakken v. State, 489 P2d 120 (Alaska 1971). The

obvious tension is between the natural instinct of an appellate

court to affirm a result that may only have been reached, or

may have been reached in part, because of an error committed

below and the understandable reluctance of appellate judges to

create incentives for litigants to allow errors to go uncorrected

at trial in order to preserve possible arguments for appeal. The

dilemma is most apparent in cases where a clearly erroneous

instruction on an important point is given to a jury. On the one

hand, it would seem that the mistake cannot be permitted to

support a verdict lest the “wrong” party win and subvert the

goals of the legal rules at stake in the litigation. On the other

hand, it may be argued that it is not likely that a lawyer would

have failed to see an error of great magnitude and that it is

more likely that the verdict loser remained silent in the belief

that the jury would not listen closely to the very instruction

which would, in the event of a loss, provide ammunition for

appeal. In actual practice the dilemma is complicated by the

realization that, absent a plain error rule, the party benefiting

from the error may have an incentive to knowingly abet an

error of the trial court.

In deciding when to invoke the plain error concept, appellate

courts have looked, and will probably continue to look, to see

how important the error was; what impact the error probably

had on the outcome of the case; whether the record

demonstrates any intentional failure to bring an error to the

attention of the trial court; how burdensome re-litigation would

be, especially for the verdict winner; whether the verdict loser

promptly sought to correct any error by moving for a new trial

below; and whether the principal fault was that of the trial

judge or the attorney for the verdict loser. Weighing these

factors is not likely to produce a totally satisfactory solution,

but a less flexible approach threatens to remove the dilemma

by advocating a result which will be totally unsatisfactory in

many cases.

(Amended by SCO 671, effective June 15, 1986).

Rule 104.

Preliminary Questions.

(a)0Questions

of Admissibility

Generally.

The

applicability of a particular rule of evidence often depends

upon the existence of a condition. Is the alleged expert a

qualified physician? Is a witness whose former testimony is

offered unavailable? Was a stranger present during a conver-

sation between attorney and client? Was an out-of-court

statement against interest when made? In each instance the

admissibility of evidence will turn upon the answer to the

question of the existence of the condition. Accepted practice,

incorporated in the rule, places on the judge the responsibility

for these determinations. McCormick (2d ed.) § 53; Morgan,

Basic Problems of Evidence 45-50 (1962). The general rule is

that when relevant evidence may be excluded under some rule

of evidence and factfinding is necessary in the application of

the rule, the judge acts as a trier of fact. See generally, Maguire

& Epstein, Preliminary Questions of Fact in Determining the

Admissibility of Evidence, 40 Harv. L. Rev. 392 (1927).

Entrusting the judge—rather than the jury—with the

responsibility of determining certain factual questions serves a

threefold purpose. First, it prevents the submission of highly

technical evidentiary questions to a group of lay persons ill

equipped “to do legal reasoning.” Maguire & Epstein, supra at

393, quoting C. Chamberlayne, Evidence § 81 (1911). See

Morgan, supra at 169 (“A mind trained to sift evidence may

substantially accomplish even so difficult a task; but to expect

the unskilled minds of jurors to do so is little short of ridiculous”). Second, it insulates the jurors from the kinds of evidence that they may be unable to evaluate fairly; trepidations

as to the ability of jurors to evaluate fairly certain kinds of

evidence give rise to various exclusionary rules. See Morgan,

supra at 166 n.4 (hearsay rules). See generally, Levin & Cohen, The Exclusionary Rules in Nonjury Criminal Cases, 119

U. Pa. L. Rev. 905 (1971). Finally, resolution of the preliminary factual question by the judge may be necessary to

preserve and protect the very interest sought to be furthered by

the suppression of certain evidence. As was stated by Morgan,

supra at 169: “[N]othing could be more absurd than to violate

the interest and then to instruct the jury to repair the damage by

disregarding the wrongfully extracted evidence. If a lawyer is

compelled to repeat in open court the confidential

communications of his alleged client, and the jury is told to

disregard them in case they find the relationship exists, the

harm of disclosure is beyond remedy.” See generally,

Saltzburg, Standards of Proof and Preliminary Questions of

Fact, 27 Stan. L. Rev. 271, 271-73 (1975).

If the question is factual in nature, the judge will of

necessity receive evidence pro and con on the issue. The rule

provides that the rules of evidence in general do not apply to

this process. One commentator points out that the authorities

are “scattered and inconclusive,” and observes:

Should the exclusionary law of evidence, “the child of

the jury system” in Thayer’s phrase, be applied to this

hearing before the judge? Sound sense backs the view that it

should not, and that the judge should be empowered to hear

any relevant evidence, such as affidavits or other reliable

hearsay.

McCormick (2d ed.) § 53 at 122 n.91. This view is

reinforced by practical necessity in certain situations. An item,

offered and objected to, may itself be considered in ruling on

admissibility, though not yet admitted in evidence. Thus the

content of an asserted declaration against interest must be

considered in ruling whether it is against interest. Again,

common practice calls for considering the testimony of a

witness, particularly a child, in determining competency. See

McCormick on Evidence § 10 at 21 (2d ed. 1972).

EVIDENCE RULES COMMENTARY

Legitimate concern may exist that the use of affidavits by

the judge in preliminary hearings on admissibility will reduce

factfinding precision. But many important judicial

determinations are made on the basis of affidavits.

Rule 43(e), Alaska R. Civ. P., dealing with motions

generally, provides: “When a motion is based on facts not

appearing of record, the court may hear the matter on affidavits

or other documentary evidence presented by the respective

parties, but the court may direct that the matter be heard

wholly or partly on oral testimony or depositions.” Civil Rule

4(e) (6) provides for proof of service by affidavit. Civil Rule

56 provides in detail for the entry of summary judgment based

on affidavits. Affidavits may supply the foundation for

temporary restraining orders under Civil Rule 65 (b).

The study made for the California Law Revision

Commission recommended an amendment to Uniform Rule 2

as follows: “In the determination of the issue aforesaid

[preliminary determination], exclusionary rules shall not apply,

subject, however, to…any valid claim of privilege.” California

Law Revision Commission, Tentative Recommendation and a

Study Relating to the Uniform Rules of Evidence 470 (1962)

(Article VII, Hearsay). The proposal was not adopted in the

California Evidence Code. The Uniform Rules are likewise

silent on the subject. However, New Jersey Evidence Rule

8(1), dealing with preliminary inquiry by the judge, provides:

“In his determination the rules of evidence shall not

apply except for Rule 4 [exclusion on grounds of prejudice,

etc.] or a valid claim of privilege.”

N.J. Rev. Stat. Ann. § 2A:84A-8 (West 1976).

There is now increased support for the proposition that the

exclusionary rules are confined to trials. See United States v.

Matlock, 415 U.S. 164, 39 L.Ed. 2d 242 (1974); cf. United

States v. Calandra, 414 U.S. 338, 38 L.Ed. 2d 561 (1974).

It is important to keep in mind that, while the court may not

be bound by the rules of evidence in ruling on preliminary

questions, it may be reversible error for the court to refuse to

hear testimony actually offered. This subdivision offers a

shortcut to proof. It does not provide that refusal to hear probative evidence will be permitted. A permissible shortcut should

not become a rule of preference.

(b)0Relevancy Conditioned on Fact. It frequently happens

that two or more controverted facts are so related that evidence

of one is inadmissible without evidence of one or more of the

others. Thus when a spoken statement is relied upon to prove

notice to X, it is without probative value unless X heard it. Or

if a letter purporting to be from Y is relied upon to establish an

admission by him, it has no probative value unless Y wrote or

authorized it. Relevance in this sense has been labelled

“conditional relevancy.” Morgan, Basic Problems of Evidence

45-46 (1962). Problems arising in connection with it are to be

distinguished from problems of logical relevancy (e.g.,

evidence in a murder case that the accused on the day before

purchased a weapon of the kind used in the killing) treated in

Rule 401.

In the case of conditional relevance, as generally, the judge

has some control over the order in which each piece of

evidence is to be offered. He may refuse to receive evidence of

one fact until evidence sufficient to warrant a finding of

another has been offered. Or, he may receive evidence of one

upon assurance by counsel that the requisite evidence of the

other or others will be offered. The judge makes a preliminary

determination whether the foundation evidence is sufficient to

support a finding of fulfillment of the condition. If so, the item

is admitted. If after all the evidence on the issue is in, pro and

con, the jury could reasonably conclude either that fulfillment

of the condition is or is not established, the issue is for them. If

the evidence is not such as to allow a finding, the judge

withdraws the matter from their consideration. Morgan, supra;

Cal. Evid. Code § 403 (West); N.J. Rev. Stat. Ann.

§ 2A:84A8(2) (West 1976). See also Uniform Rules of

Evidence 19 & 67. If the evidence so received is very

prejudicial, a mistrial may be ordered.

If preliminary questions of conditional relevancy were

determined solely by the judge, as provided in subdivision (a),

the functioning of the jury as a trier of fact would be greatly

restricted and in some cases virtually destroyed. Relevance

questions are appropriate questions for juries. Accepted

treatments, as provided in the rule, is consistent with that,

given fact questions generally.

admissibility of confessions must be conducted outside the

hearing of the jury. See Jackson v. Denno, 378 U.S. 368, 12

L.Ed.2d 908 (1964). Otherwise, detailed treatment of when

preliminary matters should be heard outside the hearing of the

jury is not feasible. The procedure is time consuming. Not

infrequently the same evidence which is relevant to the issue of

establishment of fulfillment of a condition precedent to

admissibility is also relevant to weight or credibility; and time

is saved by taking foundation proof in the presence of the jury.

Much evidence on preliminary questions, though not relevant

to jury issues, may be heard by the jury with no adverse effect.

A great deal must be left to the discretion of the judge who will

act as the interests of justice require.

However, where an accused is a witness as to a preliminary

matter, he has the right, upon his request, to be heard outside

the jury’s presence. Although in some cases duplication of

evidence will occur and the procedure may be abused, a proper

regard for the right of the accused not to testify generally in the

case dictates that he be given an option to testify outside the

hearing of the jury on preliminary matters. To leave completely

to the judge’s discretion the determination of whether the

preliminary hearing is held outside the hearing of the jury

would risk allowing the jury to hear extremely prejudicial

evidence. For a similar provision, see Cal. Evid. Code § 402(b)

(West 1966).

The second sentence of subdivision (c) should apply to civil

actions and proceedings as well as criminal cases.

(d)0Testimony by Accused. This subdivision is more

protective of a criminal defendant than the Federal Rule.

The first sentence, which is the same in both rules, bars

cross-examination on issues unrelated to the factfinding

necessary to resolve the preliminary matter; it enables the

prosecution to fully litigate all preliminary questions but

prevents questioning on preliminary matters to be used as a

mechanism for circumventing the privilege against

self-incrimination. It is difficult to see how the prosecutor is

unfairly disadvantaged by such a procedure, and it is plain that

ALASKA COURT RULES

the defendant is encouraged to take the witness stand. Since

factfinding on the preliminary matter is likely to be improved,

the policies underlying the evidence rule giving rise to the

factfinding should be well served. See generally, Carlson,

Cross-Examination of the Accused 52 Cornell L. Q. 705

(1967).

The equivalent of the second sentence of this subdivision,

which was found in an earlier draft of the Federal Rule and

was subsequently deleted, affords additional protection. It

provides a further incentive for a defendant to testify on

preliminary matters by insuring that the defendant’s words

cannot be used at trial by the government unless the defendant

testifies and contradicts the previous testimony given at the

preliminary hearing. The defendant has a shield against general

use of the evidence, but cannot seek to turn that shield into a

perjurious sword. Compare Agnello v. United States, 269 U.S.

20, 70 L.Ed. 155 (1925) with Walder v. United States, 347 U.S.

62, 98 L.Ed. 503 (1954). But see Rule 412 infra (evidence

illegally obtained). This is consistent with the United States

Supreme Court’s position in Simons v. United States, 390 U.S.

377, 19 L.Ed.2d. 1247 (1968).

In Simmons the Court held that a defendant had a right to

testify at a preliminary hearing on a motion to suppress

evidence illegally seized under the Fourth Amendment for the

purpose of establishing standing and then to prevent the

government’s use of the testimony as part of its case-in-chief.

The Court emphasized the tension between Fourth and Fifth

Amendment rights and opted for this way of easing the

tension.

It has been argued that the later decision in McGautha v.

California, 402 U.S. 183, 28 L.Ed.2d 711 (1971), leaves

Simmons of dubious precedential value. But this is not necessarily so. In one of the two cases decided together as

McGautha, the Court rejected an argument that Ohio violated a

defendant’s right to a fair trial by establishing a unitary

procedure for determination of guilt and penalty by the jury.

The argument that the single verdict improperly pitted the

defendant’s right to remain silent on the issue of guilt against

his right to address the authority imposing punishment was

rejected. Although the Court had never recognized a

constitutional right of allocution, it assumed one existed. But

the Court noted that the Ohio Constitution guaranteed

defendants the right to have their counsel argue in summation

for mercy as well as for acquittal. It also noted that defendants

were allowed much leeway in offering evidence on the issue of

punishment. The Court concluded, in addition, that “[e]ven in a

bifurcated trial, the defendant could be restricted to the giving

of evidence, with argument to be made by counsel only.” Id. at

220, 28 L.Ed.2d at 733. As for the defendant’s claim that

evidence might exist within the unique knowledge of a defendant, the Court concluded that the Constitution did not forbid

“a requirement that such evidence be available to the jury on

all issues to which it is relevant or not at all.” Id. at 220, 28

L.Ed.2d at 734.

In sum, the Court declared that the tension between a

defendant’s desires to remain silent on the issue of guilt and to

speak on the question of penalty was not serious enough to

require bifurcation as a matter of federal constitutional law.

Whatever the ultimate judgment on the wisdom of McGautha,

it is apparent that the Court faced a different kind of problem

from that faced in Simmons. If it had required bifurcation,

would all criminal defendants have been entitled to limited

waiver of their privilege against self-incrimination on the

ground that there would be a right to present evidence on one

issue pitted against a privilege to remain silent on another? For

example, would a criminal defendant have a constitutional

right to bifurcate the mens rea and actus reus parts of a case?

Would a defendant have a right to bifurcation every time his

testimony could be used on more than one issue and he desired

to address himself to only one? If the answer to these questions

was to be “no,” how would the McGautha issue be distinguished?

Simmons was different, of course, because in Simmons there

had to be two proceedings. Hence, the defendant was asking

that the practical requirement of two proceedings—a trial and a

hearing—be considered in assessing the conflict between

constitutional rights. It was in this context that the Court

responded favorably.

Thus, one reading of McGautha and Simmons is that where

a hearing, aside from trial, must be held on a constitutional

claim raised by a defendant, the defendant must be permitted

to testify at the hearing with the assurance that the testimony

will not be used as part of the prosecution’s case-in-chief. At

the trial itself, the defendant cannot speak to one issue only

without risking the use of testimony on other issues.

This is not the only reading of these cases. It is possible that

Simmons is to be confined to its facts and that McGautha

began the confinement. Moreover, hearings on preliminary

matters not involving constitutional claims may be treated

somewhat differently than hearings on Fourth Amendment

claims. Subdivision (d) is not confined to any one type of

preliminary matter; it is a broad section and must, therefore,

rest on more than Simmons regardless of how that case is read.

It rests on the same fairness considerations that support the

first sentence of the subdivision. Accurate decision-making on

preliminary issues is promoted, thereby upholding the

underlying policies of the rule at stake. Defendant and

prosecutor are on equal terms during the hearing. And the

privilege against self-incrimination is promoted, not impaired.

If the defendant chooses to testify at trial and contradicts his

preliminary hearing testimony, impeachment is permitted.

Subsequent perjury prosecutions are also permitted. Deference

to the privilege against self-incrimination should not be viewed

as a license to lie. See AS 11.70.020. See generally, Beavers v.

State, 492 P.2d 88 (Alaska 1971).

(e) Weight and Credibility. An example of the

application of this subdivision is that nothing in Rule 104

precludes the defendant from attacking the credibility of a

confession that is admitted by presenting to the jury evidence

which may include some of the same matters presented to the

judge during the preliminary hearing.

For similar provisions see Uniform Rule of Evidence 8; Cal.

Evid. Code § 406 (West 1966); Kan. Stat. § 60-408 (1976);

N.J. Rev. Stat. Ann. § 2A:84A-8(1) (West 1976).

The basic rule is that courts are just as willing to accept

relevant evidence, as defined in Rule 401, previously used on a

preliminary matter as they are to accept relevant evidence

offered for the first time at trial. It is obvious, however, that the

EVIDENCE RULES COMMENTARY

actual decision on the preliminary matter may render some

otherwise relevant evidence inadmissible. If, for example, a

confession is suppressed because of a failure to advise the

accused of his rights, the suppression ruling eliminates relevant

evidence from the government’s case. In short, since rules of

evidence may result in the loss of relevant evidence anytime an

objection or motion to suppress is sustained, some relevant

evidence is lost. If an objection or motion is overruled and

evidence is deemed admissible, no relevant and proper

evidence is necessarily excluded at trial.

Rule 105.

Limited Admissibility.

This rule reflects existing common law doctrine by requiring

the trial judge, upon request, to instruct the jury as to the

proper scope of the evidence where it is admitted for a limited

purpose or against only one party. The burden generally is

placed on the party who wants the instruction to ask for it.

There may be cases where a trial judge should give a limiting

instruction sua sponte as failure to do so would lead to reversal

on appeal for plain error. See Rule 103(d). One example where

the failure to give such an instruction might be likely to

produce sufficient injustice to constitute plain error is where

the confession of a non-testifying co-defendant is introduced

against another co-defendant. Bruton v. United States, 391 U.S.

123, 20 L.Ed.2d 476 (1968).

The rule does not set forth the criteria for a proper request,

but is somewhat analogous to Rule 103 which requires a

specific objection or a reasonably definite offer of proof.

Counsel should not be permitted to make an unsupported

request but should be required to inform the court of the

specific concerns and to suggest possible methods of appropriately instructing the jury. Cf., Rule 51, Alaska R. Civ. P.

This rule, while incorporating the text of Federal Rule 105,

additionally requires that all reasonable efforts be made to

delete references to parties as to whom the evidence is

inadmissible. The purpose of this provision is to avoid,

wherever possible, prejudice to one party resulting from

admission of evidence as to another party. A similar provision

is found in the second sentence of the Maine Rules of

Evidence 105:

In a criminal case tried to a jury evidence admissible as

to one defendant shall not be admitted as to other defendants

unless all references to the defendant as to whom it is

inadmissible have been effectively deleted.

There is little reason to limit concern for the prejudicial

impact of evidence in multi-party cases to criminal trials. Thus,

Rule 105, unlike Maine’s rule, will apply in all cases tried to a

jury.

A reasonable attempt to delete references is all that is

required here. If it is not possible to delete all references to

parties as to whom the evidence is inadmissible, the court has

two options. It may order a severance or a separate trial of one

or more of the parties in accordance with Rule 42(b), Alaska R.

Civ. P., and Rule 14, Alaska R. Crim. P., if the evidence would

be unduly prejudicial despite a limiting instruction and a

reasonable attempt to delete references. Or, the court may rely

upon Rule 403, which provides the alternative of excluding the

evidence altogether if its probative value is substantially

outweighed by the danger of unfair prejudice.

Nothing in this Rule is intended to limit the availability of

these alternatives where the interest of justice cannot be served

by a limiting instruction to the jury.

Rule 106.

Remainder of, or Related Writings or

Recorded Statements.

The standard rule at common law does provide that when a

writing or recorded statement or part thereof is introduced by

any party, an adverse party can require admission of the entire

statement, assuming that the entire statement is relevant. But at

common law this evidence often is introduced as part of the

adverse party’s own case-in-chief, which may be presented

after much time has elapsed following the introduction of the

original segment. In theory, the trial judge has discretion to

change the normal order of proof and to permit the full

statement, or all relevant portions, to be introduced together

with the first portion offered. But many judges are hesitant to

depart from the usual order and to “interfere” with counsel’s

approach to a case. Common law courts are even less apt to

allow additional statements to be introduced immediately than

they are to allow an adverse party to offer a complete statement

as soon as some portions are presented.

Where time elapses between the offer of part of a statement

and the offer of the remainder, the jury may become confused

or find it difficult to reassess evidence that it has heard earlier

in light of subsequent material. Rule 106 creates a right to

require immediate admission of a complete written or recorded

statement or of all relevant portions. It is designed to enable

one party to correct immediately any misleading impression

created by another party who offers part of a statement out of

context. See McCormick § 56 (2d ed.); Cal. Evid. Code § 356

(West 1966). The rule also provides that it extends to

immediate admission of all matters so closely related to a

statement that in fairness they should be admitted immediately.

Although the Rule does not create any right of discovery of

documents, the Rule should be read to permit a court to require

a party who has introduced part of a writing or recorded

statement to show that writing or recorded statement to the

other side before the other side asks that it be introduced into

evidence. It would be impractical to allow the adverse party to

require that all statements on the same subject be produced for

inspection. Arguably, any statement that is relevant to the

issues being tried would have to be turned over in order to

avoid a later claim that the Rule was not complied with. If all

statements were produced, the burden on the court might be

tremendous. Fairness does not require such full discovery, in

view of the countervailing concerns giving rise to the general

protections for witness statements. Thus, it is only where a

specific statement is relied upon by one party that the other

should be permitted to see the entire statement.

This understanding regarding disclosure of writings and

recorded statements builds upon the Jencks Act, 18 U.S.C.

§ 3500 and on AS 12.45.060. But this Rule applies in both civil

and criminal actions, and it applies to defendants as well as to

plaintiffs.

Nothing in this Rule changes the pre-trial discovery rules

currently in use. See, e.g., Rule 16, Alaska R. Crim. P., Rule

26(b), Alaska R. Civ. P. These procedural rules define what

may be discovered before trial. Whatever a party has discov-

ALASKA COURT RULES

ered before trial may be offered under the last sentence of Rule

106 so that the trial judge can decide whether in fairness it

should be considered along with a statement or part thereof put

forth by another party.

Rule 106 does expand discovery at trial, as opposed to

pretrial discovery. Generally, in civil cases witness statements

will not be discoverable before trial. They usually will qualify

as trial preparation materials. Under Rule 16, Alaska R. Crim.

P., as recently amended, criminal defendants usually will see

witness’ statements before trial. But there are exceptional

cases, see, e.g., Rule 16(d) (4), Alaska R. Crim. P., which is

governed by AS 12.45.060. Rule 106 advances the point at

which such statements are discoverable to the point at which

discovery will do the most good — i.e., the point at which part

of a statement is introduced in evidence. In civil cases, no

Jencks Act applies, and there is no general obligation to turn

over a witness’ previous statement to an opposing party after a

witness testifies. Rule 106 takes the position that once a civil

litigant offers into evidence a portion of a witness’ statement,

fairness requires that the litigant turn over the entire relevant

portion of the statement to an opposing party. This Rule is

consistent with the United States Supreme Court decision in

United States v. Nobles, 422 U.S. 225, 45 L.Ed.2d 141 (1975).

Rule 106 does not create any affirmative duty to proffer the

whole of any statement when one desires to introduce only a

part, but the Rule allows an adverse party to inspect the whole

immediately upon request in order to ascertain that no

misleading impression will result from incomplete admission.

Adequate protection against disclosure of irrelevant

information is afforded the offering party and third persons by

the fact that the judge might delete irrelevant material, if

requested to do so. Article IV should be consulted on relevance

issues.

At first blush any privilege that might be claimed with

respect to a statement would seem to be waived by offering a

portion of it into evidence. But a statement may address

several unrelated issues, and any waiver may be partial. The

court cannot demand the complete statement without

permitting the offering party to claim a privilege as to

unrelated matters. Some minimal inquiry into the nature of the

privileged matter may be required. But in view of the common

law experience with waiver, the judicial task should not be

unfamiliar. See United States v. Weisman, 111 F.2d 260, 261-62

(2d Cir. 1940) (L. Hand, J.). Article V will govern privilege

questions. Once privileged matter is deleted, the judge will

make the relevant determination regarding non-privileged

matters. Cf., AS 12.45.070.

Upon request, the court should provide protection against

undue annoyance, embarrassment, or oppression, a philosophy

reflected in Fed. R. Civ. P. 26(c) and Rule 26(c), Alaska R. Civ.

P. Among other things, the court may wish to restrict the

extrajudicial flow of information and to hear argument in

chambers on the offer of certain information which may be

highly prejudicial and which ultimately may be excluded under

Rule 403.

For practical reasons, Rule 106 is limited to the introduction

of a writing or recorded statement; testimony by a witness is

not affected by the rule. Any attempt to include testimony

within the coverage of this rule would open the door to

immediate cross-examination of a witness who refers during

testimony to any out-of-court statement by anyone. Rule 106

takes the position that there is no more reason to allow

immediate cross-examination of this testimony than any other

testimony by the witness which presumably could be made

more complete by cross-examination. Testimony is not likely

to have the impact of a written or recorded statement which,

when offered, may appear to be extremely trustworthy.

Note: The Alaska Supreme Court’s Committee on Rules of

Evidence voted to adopt, in lieu of the Reporter’s Comment

to this rule, the commentary contained in the Advisory

Committee’s note to Federal Rule 106, with the following

addition: “The rule of completeness as set forth in Rule 106

does not deal with issues of relevancy and privilege, nor is it

intended to alter or affect the normal rules pertaining to

relevancy and privilege contained elsewhere in the Alaska

Rules of Evidence. Accordingly, the problem of deletion of

privileged or irrelevant material from a writing whose

admission is sought under the provisions of Rule 106 should

appropriately be dealt with by pertinent provisions of the

Rules of Evidence dealing with relevancy and privilege.”

ARTICLE II. JUDICIAL NOTICE

Rule 201.

Judicial Notice of Fact.

(a)0Scope of Rule. Rule 201 restricts only the power of the

court to declare on the record, without resort to formal proof,

that a particular fact exists, i.e., that something is actually true,

where the fact involved is one that would otherwise be decided

by the trier of fact upon submission of proof by the parties. No

other practice falls within the scope of this Rule.

The term “judicial notice” has been indiscriminately applied

to several different aspects of the decisional process. Many of

these aspects will not be affected by this Rule.

One aspect not covered by Rule 201 involves assumptions

made by the court in its determination of policy; e.g., that a

particular change in the law would probably do more harm

than good. This is not the sort of fact question that, in a jury

trial, would normally be put to the jury, and so is not subsumed

by Rule 201’s definition of “judicial notice of fact.” Rather

than findings of fact, these are policy determinations made by

the court acting in its lawmaking capacity. The court as

lawmaker is held to the same standard as the legislature is for

the veracity of its inferences: it must be rational. The court

taking judicial notice of a fact as that term is used in Rule 201

is held to a different and more demanding standard—the same

standard required for it to direct a verdict; it must be right,

meaning that rational minds would not dispute the fact that the

court notices.

Stated more specifically, Rule 201 does not bar:

(1)0Common law rule-making on the basis of factual

assumptions based on the court’s familiarity with non-evidence

sources. See e.g., Kaatz v. State, 540 P.2d 1037 (Alaska 1975).

(2)0Rule-making pursuant to a constitutional grant of

authority on the basis of disputable factual assumptions. See,

e.g., Rules of Evidence 407 and 408.

EVIDENCE RULES COMMENTARY

(3)0Constitutional interpretation based upon disputable

factual assumptions—for example the balancing of interests in

the vague area of due process.

jurisdiction of the trial court or are capable of accurate and

ready determination by resort to sources whose accuracy

cannot reasonably be doubted.

(4) Judicial creation of remedies assumed to be necessary to

carry out the legislative intent of a statute.

These general categories (matters of common knowledge,

readily verifiable facts) have traditionally been treated as the

clearest cases for judicial notice. See McCormick §§ 328-330.

Like the Federal Rule, this Rule omits any mention of propositions of generalized knowledge, which were included in

Uniform Rule 9(1) and (2). It is doubtful that many such

propositions will fall within the scope of Rule 201 as limited

by subdivision (a). Any that do must satisfy the condition of

subdivision (b) in order to be judicially noticed. For instance, it

is not proper for a court to base its decision on the unsupported

belief that “no one could be so naive as to believe that a small

advisory service with only 5,000 subscribers could by its own

recommending influence cause such stocks as Union Pacific

(22,000,000 shares outstanding),…invariably and automatically to rise so that defendants could always sell their small holdings at a small profit.” Securities and Exchange Commission v.

Capital Gains Research Bureau, 300 F.2d 745, at 748 (2d Cir.

1961), reversed and remanded on other grounds 375 U. S. 180,

11 L.Ed.2d 237 (1963).

Rule 201 follows the existing Alaska practice regarding

scope of judicial notice rather than adopting the federal

practice of separating facts into “adjudicative” and

“legislative” categories. This dichotomy is rejected as an

unnecessary and artificial description of the difference between

taking judicial notice of a fact and making assumptions in the

determination of policy. The terms used in the Federal Rule are

ambiguous and overlap. See Goodman v. Stalfort, Inc., 411 F.

Supp. 889 (D. N.J. 1976), for an example of a court’s struggle

to come to grips with the categories.

Alaska Rule 201 requires a determination of whether a

question is one normally decided by the trier of fact or is the

sort properly left to the maker of law. While this determination

is not always easy to make, it is one that courts have coped

with for many years. Simply stated, the guiding principle

should be: if the fact involved tends to show that general

conduct X is or is not, or should or should not, be against the

law (or unconstitutional), it is for the court to consider freely;

if the fact involved tends to prove an instance of X, it is a

question for the trier of fact and covered by Rule 201.

(b)0General Rule. Courts have traditionally been cautious

in taking judicial notice of facts normally decided by the trier

of fact after being proved. As Professor Davis says;

The reason we use trial-type procedure, I think, is that

we make the practical judgment, on the basis of experience,

that taking evidence, subject to cross-examination and rebuttal, is the best way to resolve controversies involving disputes of adjudicative facts, that is, facts pertaining to the

parties. The reason we require a determination on the record

is that we think fair procedure in resolving disputes of

adjudicative facts calls for giving each party a chance to

meet in the appropriate fashion the facts that come to the

tribunal’s attention, and the appropriate fashion for meeting

disputed adjudicative facts includes rebuttal evidence,

cross-examination, usually confrontation, and argument

(either oral or written or both). The key to a fair trial is

opportunity to use the appropriate weapons (rebuttal

evidence, cross-examination, and argument) to meet adverse

materials that come to the tribunal’s attention.

A System of Judicial Notice Based on Fairness and

Convenience, in Perspectives of Law 69, at 93 (1964). Rule

201 is based on the belief that wherever a lawmaking authority

conditions the applicability of a law on the proof of facts, these

considerations call for dispensing with traditional methods of

proof only in clear cases regardless of what label is attached to

the facts. Compare Professor Davis’ conclusion that judicial

notice should be a matter of convenience, subject to the

requirements of procedural fairness. Id. at 94.

For the most part this Rule is consistent with both Federal

Rule 201 and the now superseded Alaska Rule of Civil

Procedure 43(a), which was based on Uniform Rule 9. Rule

201 limits judicial notice to facts not subject to reasonable

dispute in that they are either generally known in the territorial

Lack of information should not be confused with

indisputability. If the information before the court, whether or

not furnished by the parties, is insufficient to satisfy

subdivision (b) or fails to clearly convince the court that a

matter should be judicially noticed, the court should decline to

take judicial notice and require proof in the usual manner, although the court considers the fact more probable than not. An

adequate development of the facts at trial in a jury case

protects a party’s right to have questions of fact resolved by the

jury, and, in a non-jury case, assures the parties the power to

cross-examine and submit contrary evidence.

Under subdivision (c) the judge has a discretionary authority to

take judicial notice, as long as subdivision (b), supra, is

satisfied, regardless of whether he is so requested by a party.

The taking of judicial notice is mandatory under subdivision

(d) only when a party requests it, the necessary information is

supplied, and each adverse party has been given adequate

notice, to be determined by the court. If these conditions are

not met the court need not take judicial notice, although it is

still free to do so as a matter of discretion. The question of

whether or not to take judicial notice of fact that satisfies the

conditions of subdivision (b) is thus left primarily to the court’s

discretion. This is a simple, workable system, and it reflects

the existing Alaska practice (see Alaska Civil Rule 43(a) (1),

(2), and (3)).

Federal Rule 201 (c) and (d) are very similar to this Rule.

Compare Uniform Rule 9, making judicial notice of facts

universally known mandatory without request, and making

judicial notice of facts generally known in the jurisdiction or

capable of determination by resort to accurate sources discretionary in the absence of request, but mandatory if request is

made and the information furnished. But see Uniform Rule

10(3), which directs the judge to decline to take judicial notice

if available information fails to convince him that the matter

falls clearly within Uniform Rule 9 or is insufficient to enable

him to notice it judicially. Substantially the same approach is

found in California Evidence Code §§ 451-453 and in New

ALASKA COURT RULES

Jersey Evidence Rule 9. In contrast, the present Rule treats

alike all facts which are subject to judicial notice.

Rule 202.

Judicial Notice of Law.

(a)0Scope of Rule. The Federal Rules of Evidence contain

no provision analogous to this Rule. Expressing the view that

the manner in which law is “fed into the judicial process” is

not the proper concern of rules of evidence, the Advisory

Committee recognizes Rule 44.1 of the Federal Rules of Civil

Procedure and Rule 26.1 of the Federal Rules of Criminal

Procedure as governing the method of invoking the law of

foreign countries. However, in adopting Rules of Evidence

based on the Federal Rules, Nevada provides for judicial notice

of matters of law. See Nevada Rule of Evidence 47.140. Because Alaska R. Civ. P. 43 (a), superseded by this Rule,

combined judicial notice of law and fact, and because the

failure of a court to take judicial notice of law may result in

proof being offered by the parties, Rule 202 follows Nevada’s

lead in including a provision for judicial notice of law among

evidence rules. This Rule governs judicial notice of domestic

laws and regulations, and both foreign and international law.

(b) Without

Request—Mandatory.

Under

this

subdivision, judicial notice of the laws of sister states is not

mandatory upon the court. For some time judicial notice has

only been taken of a state’s own laws and the laws of the

federal government. It has been necessary to both plead and

prove the law of other jurisdictions. In 1936 the National

Conference of Commissioners on Uniform State Laws drafted

the Uniform Judicial Notice of Foreign Law Act which was

adopted in substance by over half the jurisdictions (withdrawn

in 1966). In effect, this Act provided that every court within

the adopting jurisdiction must take judicial notice of the

common law and statutes of every other state. This was also

the approach of Uniform Rule 9 (1953). Alaska R. Civ. P.

43(a), superseded by this Rule accepted the reform. This

subdivision does not make notice mandatory because the

Committee on Rules believed that the realities of law practice

in Alaska, especially the availability of books, was such that

parties should be encouraged to provide the court and opposing

counsel with copies of sister states’ laws. It is important to

recognize that a court will take notice of sister state law if a

proper request and presentation are made, or if the court

decides to exercise its option to take notice under subdivision

(c), infra.

defines the discretionary power of the court to take judicial

notice on its own initiative.

Section (1) recognizes that federal rules, and state and

territorial laws may often be difficult to find in Alaska

libraries. However, where the court is in possession of relevant

material, notice may be taken.

Section (2) is very similar to Uniform Rule 9(2) (a), which

was based on the Model Code of Evidence, Rule 802(a)

(1942). Where private acts and resolutions are easily

ascertained the court can conveniently take judicial notice of

them and often will. Where agency regulations operate with

the power of law there is every reason to take judicial notice of

them. See AS 44.62.110, providing for judicial notice of

regulations printed in the Alaska Administrative Code or

Alaska Administrative Register. See also 44 U.S.C.A. § 1507,

providing for judicial notice of the contents of the Federal

228 F. Supp. 322 (D. Alaska 1964), cert. denied, 383 U.S. 936,

15 L.Ed. 2d 853 (1965). Due to the difficulty of ascertaining

all such acts, resolutions, regulations and ordinances as may be

applicable to a case, the court need only take judicial notice on

its own initiative where it is convenient to do so. See

Australaska Corp. v. Sisters of Charity, 397 P.2d 966 (Alaska

1965).

Section (3) expands the scope of judicial notice. It

recognizes that today there is no reason to conclusively

presume that the law of sister states is beyond the reach of

Alaska. Sometimes acts, regulations, and local ordinances of

other states will be unavailable. If so the court will not have to

take notice of them, because this section is permissive and

Subdivision (d) places a burden of producing sufficient

information on a party before notice must be taken. If

Subdivision (d) is satisfied, there is no good reason not to take

notice. A similar view is taken with respect to emergency and

unpublished regulations of Alaska agencies.

Section (4) provides for discretionary notice of foreign law

and international law. Long after the law of foreign states

became a matter of judicial notice in many jurisdictions, the

law of foreign countries remained a matter of fact to be

pleaded and proved. The Uniform Judicial Notice of Foreign

Law Act, although only applicable to the law of sister states,

did state that determining the law of foreign countries ought to

be an issue for the court, not the jury. See 9A Uniform Laws

Ann. 550, 569 (1965). Foreign law still had to be pleaded and

proved even after some states took the determination of foreign

law from the jury. Where it was not pleaded or properly

proved, dismissal was usually avoided by presuming the

foreign law to be the same as the law of the forum. See Stern,

Foreign Law in the Courts: Judicial Notice and Proof, 45 Cal.

L. Rev. 23 (1957).

Federal R. Civ. P. 44.1 and its identical counterpart, Crim.

R. P. 26.1 require that to raise an issue of foreign law, either

notice must be given in the pleadings or other reasonable

notice must be given. In determining foreign law, the court

“may consider any relevant material or source, including

testimony.” The notice requirement functions to alert the

parties that foreign law is an issue in the case.

Evidence Rule 202 treats foreign law as the proper subject

of judicial notice. This is the view taken by Uniform Rule 9(2)

(b) and by Alaska R. Civ. P. 43(a) (2) [b], superseded by this

Rule. The court may look to any pertinent source of information including the testimony of expert witnesses to ascertain

foreign law.

Section (2) also provides for judicial notice of international

law. It was early stated that

[i]nternational law is part of our law, and must be

ascertained and administered by the courts of justice of

appropriate jurisdictions as often as questions of right

depending upon it are duly presented for their

determination.

The Paquete Habana, 175 U.S. 677, 700, 44 L.Ed. 320, 328

(1899).

EVIDENCE RULES COMMENTARY

In ascertaining international law the court may consult and

use any source of pertinent information. Just as in English

canon law experts played a large part in determining foreign

law, it is anticipated that expert testimony may play a role in

showing what foreign and international law is in a given

situation. See Texas v. Louisiana, 410 U.S. 702, 35 L.Ed. 2d

646 (1973); Panel, “Proving International Law in a National

Forum,” 70 Am. Soc’y Int’l L. (1976). Maritime law is treated

similarly.

Section (5) provides that if a matter of law could be noticed

under this Rule, but the law has been repealed or replaced, it

still may be proved by judicial notice, if it remains relevant to

the case.

(d) With Request—Mandatory. At the request of a party

the court shall take notice of any matter included in

subdivision (c). If the party’s request is accompanied by

sufficient information and adequate notice to adverse parties, it

is mandatory that the court take judicial notice. The difficulty

of finding all applicable law and obtaining proper information

under subdivision (c) disappears when the requirements of this

subdivision are satisfied. The notice requirement to adverse

parties provides the opportunity for a chance to be heard on the

propriety of taking judicial notice of the matter.

Rule 203.

Procedure for Taking Judicial Notice.

This Rule applies to all aspects of judicial notice and must,

therefore, be read in conjunction with both Rule 201 and Rule

202.

(a)0Determining Propriety of Judicial Notice. Basic

considerations of procedural fairness demand an opportunity to

be heard on the propriety of taking judicial notice and the tenor

of the matter noticed. The rule requires the granting of that

opportunity upon request. No formal scheme of giving notice

is provided. An adversely affected party may learn in advance

that judicial notice is in contemplation, either by virtue of

being served with a copy of a request by another party under

subdivision (d) of Rule 201 that judicial notice be taken, or

through an advance indication by the judge. Or he may have no

advance notice at all. Although the rule does not require formal

notice by the court to the parties, before judicial notice is taken

(except in unusual circumstances) the court should announce

its intentions to the parties and indicate for the record the

particular facts to be taken as true. See Concerned Citizens v.

Kenai Peninsula Borough, 527 P.2d 417 (Alaska 1974). In the

absence of advance notice, a request made after the fact could

not in fairness be considered untimely. See the provision for

hearing on timely request in the federal Administrative

Procedure Act, 5 U.S.C. § 556(e). See also Revised Model

State Administrative Procedure Act (1961), 9C U.L.A. § 10(4)

(Supp. 1967).

In considering taking judicial notice, the court is not

restricted to sources of information proffered by the parties,

but may consult any source, including treatises, experts,

scientific journals, etc. No exclusionary rule except a valid

claim of privilege shall apply. However, the court as a matter

of discretion, should disclose, on request, the main sources on

which a decision to take judicial notice is or was based, in

order to make the parties’ opportunity to be heard meaningful.

(b)0Time of Taking Notice. In accord with the usual view,

judicial notice may be taken at any stage of the proceedings,

whether in the trial court or on appeal. Federal Rule 201(f);

Uniform Rule 12; McCormick § 333.

contemplates there is to be no evidence before the jury in

disproof of a judicially noticed fact. The court instructs the

jury to take judicially noticed facts as established. This

position is justified by the undesirable effects of the opposite

rule in limiting the rebutting party, though not his opponent, to

admissible evidence, in defeating the reasons for judicial

notice, and in affecting the substantive law to an extent and in

ways largely unforeseeable. Ample protection and flexibility

are afforded by the broad provision for opportunity to be heard

on request, set forth in subdivision (a).

Authority upon the propriety of taking judicial notice

against an accused in a criminal case with respect to matters

other than venue is relatively meager. While it may be argued

that the right of jury trial does not extend to matters which are

beyond reasonable dispute, the rule opts for the greater

protection of the accused’s right to a jury trial afforded by the

limited instruction that the jury may, but is not required to,

accept as conclusive any fact judicially noticed. The Federal

Rule is in accord. Much of the concern about a possible need

to take notice of some facts in criminal cases can be eliminated

by careful attention to the elements of an offense. Venue and

jurisdiction are not usually elements of a crime. Of course,

they must be proper (assuming an appeal will be taken). But

the same judge who decides in a civil case whether a court has

jurisdiction and what proper venue is can do so in a criminal

case. Of course, venue and jurisdiction questions may involve

factfinding, but many questions left for the court involve

factfinding. See, e.g., Rule 104 (a), supra. Consider also

change of venue motions and attacks on jury verdicts.

Factfinding unrelated to the elements of the crime can be done

by the judge. With this in mind, Rule 203 is drafted to avoid

the knotty constitutional questions that would arise were an

attempt made to permit judicial notice of some facts relevant to

the merits of an action but not others. To draw such a line

might be to resurrect the “ultimate issue” test abandoned in

Rule 704, infra.

Rule 203(c) is drafted so that it conclusively states that

determining questions of law shall be a matter for the court.

When the determination of the law of foreign states and

foreign countries was treated as a question of fact, it became a

matter for the jury in appropriate cases. Statutes and acts such

as the Uniform Judicial Notice of Foreign Law Act and Federal

Rule of Civil Procedure 44.1 have attempted to remove this

anomaly in traditional court and jury functions. This

subdivision expresses the view that determining the law is a

function of the court. See Uniform Rule 10(4) for an identical

provision. If judicial notice of law is not taken, evidence will

be required, but the decision on what the law is remains that of

the court.

Nothing in the rule is intended to suggest that it authorizes a

lawyer to argue jury nullification to the jury in a criminal case.

The jury simply is to be told that a noticed fact is treated as if

evidence of it were authorized, and the trier of fact is to treat it

as if evidence were submitted. A defense lawyer can argue that

ALASKA COURT RULES

any fact should be disbelieved by the jury and this is as true of

a judicially noticed fact as of any other fact.

ARTICLE III. PRESUMPTIONS

Rule 301.

Presumptions in General in Civil Actions

and Proceedings.

(a)0Effect. This Rule governs rebuttable presumptions

generally in civil cases. See Rule 302 for presumptions controlled by federal law and Rule 303 for those operating in a

criminal case.

The word “presumption” has many different meanings in the

law. See Laughlin, In Support of the Thayer Theory of

Presumptions, 52 Mich. L. Rev. 195, 196-209 (1953). As used

herein, a “presumption” is a recognition in law of the

relationship between two facts or groups of facts. If one fact or

group of facts is shown to exist, the law presumes the existence

of the other but permits rebuttal.

The burden placed upon the party seeking the advantage of a

presumption is to prove the initial fact, often called the “basic”

or “proved” fact. If this fact is not disputed, then the

presumption will operate. If the fact is disputed, the

presumption will only operate if the trier of fact finds that the

basic fact exists.

Assuming the existence of the basic fact, Rule 301 provides

that the presumed fact shall also be found to exist unless the

party against whom the presumption operates meets the

presumption with evidence sufficient to permit a reasonable

trier of fact to find that the presumed fact does not exist. A

failure to meet the presumption with sufficient evidence results

in a peremptory instruction or a directed verdict. If the burden

of producing evidence is satisfied, the presumption disappears

and no mention of it may be made to the jury, which is likely

to be confused by the term. The court must, however, instruct

the jury that it may infer the existence of the presumed fact

from the basic fact.

There has been substantial disagreement in the past among

common law courts and legal commentators regarding the

proper weight to be given a presumption. Some authorities

hold that a presumption places the burden of proof on the party

opposing the fact presumed to establish its non-existence once

the party invoking the presumption establishes the basic facts

giving rise to it. This position is associated with McCormick

and Morgan, although the latter’s view is arrived at with some

reluctance. See Morgan, Further Observations on Presumptions, 16 So. Cal. L. Rev. 245, 254 (1943). Other authorities, following Thayer’s “bursting bubble” theory, approved by

Wigmore, hold that the presumption vanishes upon the

introduction of evidence that would support a finding of the

non-existence of the presumed facts. There are numerous

intermediate positions that have attracted attention. See

Morgan, supra, at 247-49. It is possible to treat different

presumptions differently. See Calif. Evid. Code § 600 et seq.

But Morgan, supra, at 254, persuasively argued the case for a

single standard.

Unfortunately, however, there are myriads of presumptions created by courts and legislatures. They can not

be authoritatively classified by courts except as each one is

involved in a litigated action. Wherever there is room for

difference of opinion, no presumption can finally be assigned its proper place except by the appropriate court of

last resort. To evolve a classification by judicial decision

would require decades, if not centuries. To make a legislative classification of existing presumptions would involve

immense labor and would still leave room for debate as to

all subsequently created presumptions. Unless a trial judge

were presented with a catalogue of classified presumptions,

it would be fatuous to expect him to determine the reasons

and objectives of a presumption suddenly thrust at him in

the hurry of a trial, with a demand to classify it and accord it

the appropriate effect.

The approach of this Rule approximates more closely the

views of Thayer and Wigmore than those of McCormick and

Morgan.

The shifting-the-burden of persuasion approach, approved

by the Advisory Committee on the Federal Rules and the

United States Supreme Court before being rejected by the

Congress, is rejected for several reasons.

First, Alaska has a myriad of statutes creating presumptions

within the meaning of this Rule. Some use the word

presumption or a related term. See, e.g., AS 13.06.035(3)

(Evidence as to death or status); AS 45.05.376 (Evidence of

dishonor and notice of dishonor). More use the term “prima

facie evidence,” AS 02.35.070 (Receipts for certified

certificates); AS 08.24.300 (Court action by agency); AS

10.05.726 (Failure to pay tax as evidence of insolvency); AS

10.05.795 (Certificates and certified copies to be received in

evidence); AS 13.06.035 (1) & (2) (Evidence as to death or

status); AS 18.50.320(2) (Copies of data from vital records);

AS 21.84.100 (Certificate of compliance); AS 21.84.030

(Annual license); AS 27.10.170 (Effect of recording and of

failure to record affidavit of labor or improvements); AS

27.10.190 (b) (Recording the notice to contribute and

affidavits); AS 28.10.261 (Evidence); AS 32.05.180 (b)

(Continuation of partnership beyond fixed term); AS 45.05.022

(Prima facie evidence by third party documents); AS 45.50.290

(Certificate of registration as evidence). While it is difficult to

ascertain the legislative intent in creating these presumptions,

and while the intent may vary from presumption to

presumption, it is highly unlikely that the legislature intended

many of these presumptions to have the potential impact

associated with a shift in the burden of persuasion.

Second, shifting the burden of persuasion on some issues

may tend to confuse the jury, especially in cases involving

affirmative defenses where the normal instructions on burdens

of proof already may be confusing.

Third, in situations in which the presumption operates

against a party already bearing the burden of persuasion on an

issue, the presumption may have no effect once it is rebutted.

No good reason appears why a presumption that is powerful

enough to shift the burden of persuasion should disappear

entirely when shifting is impossible.

Fourth, the Federal Rule does not shift the burden of

persuasion. When federal and state issues are tried together,

rarely will it be necessary under this Rule or Rule 302 to face

the problem of conflicting presumptions.

EVIDENCE RULES COMMENTARY

(b) Prima Facie Evidence. This subdivision makes it

clear that when the legislature uses the term “prima facie” in

reference to proving a fact, generally it intends to create a

presumption. See Degnan, Syllabus on California Evidence

Code 18-25 (11th Ann. Summer Program, U. Cal.-Berkeley) in

D. Louisell, J. Kaplan, & J. Waltz, Cases and Materials on Evidence 980-83 (3d ed. 1976). “The term ‘prima facie case’ is

often used in two senses and is therefore an ambiguous and

often misleading term. It may mean evidence that is simply

sufficient to get to the jury, or it may mean evidence that is

sufficient to shift the burden of producing evidence.”

McCormick (2d ed.) § 342, at 803 n.26. A presumption may be

utilized in both senses in the same case. The statutes set forth,

supra, do more than permit a party to get to a jury on the basis

of prima facie evidence; they evince a legislative determination

that the presumption should be accepted until rebutted. This

rule so provides.

Presumptions.

When

conflicting

presumptions are present in a single case, the court attempts to

determine which is founded in the weightier considerations of

policy and logic. McCormick (2d ed.) § 345, at 823-24, discusses the “special situation of the questionable validity of a

second marriage [which] has been the principal area in which

the problem of conflicting presumptions has been discussed by

the courts.” Most courts have taken the approach of this

subdivision in such a situation. “This doctrine that the

weightier presumption prevails should probably be available in

any situation which may reasonably be theorized as one of

conflicting presumptions, and where one of the presumptions

is grounded in a predominant social policy.” McCormick (2d

ed.) § 345, at 824. The final sentence of the Rule provides that

if there is no such preponderance, both presumptions shall be

disregarded. This follows Uniform Rule 15 (1953). It would be

confusing if the judge were to instruct the jury that it might

find fact A, but that it is not bound to, and that it might find

not-A but that is not bound to. No instruction is preferable.

Instead, the jury will learn of two basic facts suggesting

opposite inferences, and it must determine the one that is most

probable in light of all the evidence.

Nothing in this rule affects the application of conclusive

presumptions, see, e.g., AS 10.10.030 (6) (d) (Articles of

incorporation), which the United States Supreme Court

recently referred to as rules of law. Usery v. Turner Elkhorn

Min. Co., 428 U.S. 1, 49 L.Ed.2d 752 (1976). Nor does this

Rule address the validity of conclusive presumptions. Compare

Weinberger v. Salfi, 422 U.S. 749, 45 L.Ed.2d 522 (1975), with

Vlandis v. Kline, 412 U.S. 441, 37 L.Ed.2d 63 (1973), United

States Dep’t of Agriculture v. Murray, 413 U.S. 508, 37

L.Ed.2d 767 (1974), and Cleveland Bd. of Educ. v. LaFleur,

414 U.S. 632, 39 L.Ed. 2d 52 (1974). Nothing in this Rule

inhibits the creation or utilization of presumptions to protect

constitutional rights. See, e.g., Keyes v. School Dist. No. 1, 413

U.S. 189, 37 L.Ed.2d 548 (1973), discussed in K. Redden & S.

Saltzburg, Federal Rules of Evidence Manual 82-83 (2d ed.

1977).

The first sentence of the rule makes clear that the legislature

and the courts retain power to create presumptions having an

effect different from that provided for in this Rule.

Rule 302.

Applicability of Federal Law in Civil

Actions and Proceedings.

Whenever a state court looks to federal law to find the rule

of decision with respect to a claim or defense, federal law will

govern with respect to the effect of a presumption. Cf., Dice v.

Akron, C. & Y. R.Co., 342 U.S. 359, 96 L.Ed. 398 (1952). See

also the Reporter’s Comment accompany Rule 501. As Alaska

Rule 301 prescribing the effect of presumptions is identical to

the federal evidence rule, courts will seldom have to determine

which law should be followed. The only potential conflict is in

the case of a claim or defense for which the United States

Congress has provided by statute for the shifting of the burden

of persuasion or where the federal judiciary has interpreted the

Constitution or a federal statute to require shifting the burden

of persuasion and the Alaska rule is contra, or vice versa. Rule

302 will apply to such situations. Federal criminal cases will

be litigated in federal courts, so no state rule is needed to deal

with presumptions in such cases. But see Testa v. Katt, 330

U.S. 386, 91 L.Ed. 967 (1947).

Rule 303.

Presumptions in General in Criminal

Cases.

(a)0Effect. This rule governs rebuttable presumptions

generally in criminal cases. Rule 301 governs in civil cases and

Rule 302 governs presumptions controlled by federal law, although it is unlikely to have any impact in criminal cases.

The word “presumption” is used in this Rule in the same

manner as in Rule 301. The Reporter’s Comment

accompanying Rule 301 explains this use in detail. As was the

case with presumptions operating in civil cases, the legislature

sometimes creates “presumptions” without using the word

“presumption.” For example, the legislature may employ the

term “prima facie evidence,” which is covered by subdivision

(b). See, e.g., AS 11.20.220 (Evidence of knowledge of

insufficient funds); AS 11.20.250 (Evidence of intent to defraud), quoted in Selman v. State, 411 P.2d 217 (Alaska 1966).

The Advisory Committee on the Federal Rules expressed its

opinion that “[i]t is axiomatic that a verdict cannot be directed

against the accused in a criminal case0.0.0.0.0with the

corollary that the judge is without authority to direct the jury to

find against the accused as to any element of the crime…

Although arguably the judge could direct the jury to find

against the accused as to a lesser fact, the tradition is against

it…” Without making any constitutional decisions, Rule 203(c)

accepted this opinion as expressing sound policy and denied

judges the power to bind juries to facts believed by the judges

to be beyond reasonable dispute. The instant rule is in accord.

A presumption cannot be used against a defendant as a device

to preempt the jury’s function of finding facts and assessing

guilt and innocence.

When a presumption is directed against the government,

different policies govern, and a presumption may result in a

directed verdict or peremptory instruction in favor of a

defendant. Presumptions working against the government are

treated like civil presumptions under Rule 301 and will not be

discussed in this Comment.

If a presumption cannot be binding on a defendant, what is

its utility? Judge Weinstein identifies a two-fold function:

ALASKA COURT RULES

Presumptions are utilized to overcome two separate

problems in federal law. Primarily this function is to lessen

the prosecution’s burden of establishing guilt by authorizing

short-cuts in proof and exerting pressure on the person with

the most knowledge to come forward with an explanation.

0.0.0.

In addition, a presumption may serve the secondary

function of making undesirable activities amenable to

federal jurisdiction.

1 Weinstein’s Evidence, Paragraph 303 [01] (1975). The

second function is of no concern to the states in their lawmaking activities. But a third function may be important. “In a

borderline case a judge may be influenced by the legislative

judgment of Congress [or a state legislature] to submit a basic

fact to a jury which he would not have submitted as merely

circumstantial evidence of the presumed fact.” Id. Thus, the

first and third functions are the important ones for the states.

There also may be a fourth function — to make clear the intent

of the legislature in special circumstances.

Subdivision (a) allows presumptions to perform their

intended functions, but prevents them from exerting too great

an impact on the outcome of a case. If a presumption is created

by the legislature or the courts, it serves as an incentive for the

accused to submit rebuttal evidence. If no rebuttal evidence or

insufficient evidence is offered, the court, without using the

word “presumption,” will instruct the jury that it may, but is

not bound to, infer the existence of the presumed fact from

proof of the basic fact. Such an instruction is couched purely in

terms of a permissible inference; no attempt is made to guide

the jury in assessing the sufficiency of the inference to prove

guilt. This mandatory instruction is in the nature of a mild

comment on the evidence. No good reason appears why the

legislature or the courts cannot require a specific non-binding

instruction when they deem it desirable.

If the accused offers evidence to rebut or meet the

presumption, the giving of an instruction is discretionary. In

instances where the nature of a presumption directed against

the accused is such that the relationship between the proved

fact and the presumed fact is self-evident or apparent, no

instruction should normally be given by the court if the

accused offers evidence to rebut or meet the presumption,

since in such instances, a jury instruction would tend to

emphasize unduly and unnecessarily the existence of the

presumption. On the other hand, in circumstances where there

is no obvious connection between the proved fact and the

presumed fact, an instruction to the jury regarding the

existence of the presumption would ordinarily be appropriate.

A good example of this latter situation would be the

standard case involving the presumption created by a

Breathalyzer examination. The proved fact in such a case

would be a Breathalyzer reading of .10 percent blood alcohol

or greater; the fact to be presumed from the proved fact is that

the accused was under the influence of intoxicating liquor at

the time of the test. Under normal circumstances, with no

expert testimony concerning the significance of .10 percent

blood alcohol level in terms of its effect on an individual’s

sobriety, the mere awareness of the proved fact—i.e., the .10

percent blood alcohol level—would be meaningless to the

average juror. Assuming the accused in such a situation was

willing to concede the blood alcohol level, but opted to rebut

the presumption by arguing that, despite the blood alcohol

level, he was not in fact impaired, the mere establishment of

blood alcohol level by the prosecution would be rendered

wholly ineffective in the absence of a specific instruction to the

jury concerning the presumption which arises from proof of a

blood alcohol level of .10 percent or greater. It should be noted

that the burden of coming forward is less onerous here than in

Rule 301. This reflects a judgment that the defendant should

have the benefit of reasonable doubts.

One advantage of the approach taken in this Rule is that it

probably avoids the problem of applying to most presumptions

the confusing test of constitutionality compelled by the

following decisions of the United States Supreme Court: Tot v.

United States, 319 U.S. 463, 87 L.Ed. 1519 (1943), United

States v. Gainey, 380 U.S. 63, 13 L.Ed.2d 658 (1965), United

States v. Romano, 382 U.S. 136, 15 L.Ed.2d 210 (1965), Leary

v. United States, 395 U.S. 6, 23 L.Ed.2d 57 (1969), Turner v.

United States, 396 U.S. 398, 24 L.Ed.2d 610 (1970), and

Barnes v. United States, 412 U.S. 837, 37 L.Ed.2d 380 (1973).

As long as a court confines itself to a description of a

permissible inference, avoiding a statement like the trial

judge’s in Barnes—”[i]f you should find beyond a reasonable

doubt…that the mail…was stolen,…you would ordinarily be

justified in drawing the inference…unless such possession is

explained…”0(emphasis added)— and avoiding the legislative

language in Leary employed by the court in its instruction—

”[w]henever…the defendant is shown to have or to have had

the marihuana in his possession, such possession shall be

deemed sufficient evidence to authorize conviction unless the

defendant explains…” (emphasis added)—the relatively mild

comment in the form of an instruction commanded by this

Rule is likely to be sustained in light of the traditional power of

federal courts to comment on the weight of the evidence in

criminal cases and the nature of the instruction.

Another advantage of the rule is that it avoids the

complications of the proposed Federal Rules. They caused the

eminent jurist, Henry Friendly, to complain to the Congress

that he did not understand them. See Hearings on Proposed

Rules of Evidence Before the Subcomm. on Crim. Justice of

the House Comm. on the Judiciary, 93rd Cong., 1st Sess., at

249 (1973). This is not surprising, since many lawyers would

have the same difficulty.

A final advantage is that by creating presumptions that are

covered by this rule, the legislature makes the same

“statement” to courts about desired treatment of borderline

cases as it makes with more powerful presumptions.

The legislature and the courts remain free under Rule 303 to

create presumptions with a different effect than that provided

here. For example. AS 41.15.110(c) (Allowing fire to escape or

failure to make effort to extinguish; misdemeanor) provides

that “[i]n a criminal action brought under this section, the

escape of the fire is presumptive evidence of negligence by the

person responsible for starting the fire and unless rebutted is

sufficient to sustain a conviction.” While this statute avoids

any implicit reference to silence on the part of the defendant

and thus is less worrisome than some instructions approved by

other courts, see, e.g., United States v. Gainey, supra, application of the statute may be challenged more readily under the

EVIDENCE RULES COMMENTARY

line of United States Supreme Court cases previously cited

than under this rule.

(b) Prima Facie Evidence. See the Reporter’s Comment

accompanying Rule 301 (b).

subdivision is set forth in the Reporter’s Comment

accompanying Rule 301 (c). There is one important difference,

however, between the instant rule and Rule 301 (c): Under the

instant rule the effect of the preponderant presumption will

vary, depending on whether it favors the government or the

accused; no such variance occurs under Rule 301 (c).

This rule does not establish that the government must

always bear the burden of persuasion on every issue litigated in

a criminal case. Whether an accused sometimes may be

compelled to bear the burden of persuasion is beyond the scope

of these Rules of Evidence. See generally Mullaney v. Wilbur,

421 U.S. 684, 44 L.Ed.2d 508 (1975); Patterson v. New York,

432 U.S. 197, 53 L.Ed.2d 281 (1977). The language of the

Rule assumes, however, that in most instances when the

government seeks the benefits of a presumption it bears the

burden of persuasion.

Nothing in this rule eliminates the instruction that a

defendant is presumed to be innocent. This presumption is not

an evidence presumption, but a special casting of the burden

placed on the government to prove guilt beyond a reasonable

doubt.

ARTICLE IV. ADMISSIBILITY OF

RELEVANT EVIDENCE

Rule 401.

Definition of Relevant Evidence.

This rule adopts Rule 401 of the Federal Rule of Evidence

verbatim. The Advisory Committee’s Note to Federal Rule 401

explains this rule completely and concisely. It comprises the

remainder of this comment, albeit in slightly altered form.

The variety of relevancy problems is coextensive with

counsel’s skill in mustering substantive theories to support a

case and ingenuity in using circumstantial evidence as a means

of proof. An enormous number of cases fall in no set pattern,

and this Rule is designed as a guide for handling them. On the

other hand, some situations recur with sufficient frequency to

create patterns susceptible of treatment by specific rules. Rule

404 and those following it are of that variety; they also serve as

illustrations of the application of the present Rule as limited by

the exclusionary principles of Rule 403.

Passing mention should be made of so-called “conditional”

relevancy. Morgan, Basic Problems of Evidence 45-46 (1962).

In this situation, probative value depends not only upon

satisfying the basic requirement of relevancy but also upon the

existence of some matter of fact. For example, if evidence of a

spoken statement is relied upon to prove notice, probative

value is lacking unless the person sought to be charged heard

the statement. The problem is one of fact, and the only rules

needed are for the purpose of determining the respective

functions of judge and jury. See Rule 104(b). The discussion

which follows in the present note is concerned with the

relevancy generally, not with any particular problem of

conditional relevancy.

Relevancy is not an inherent characteristic of any item of

evidence but exists only as a relation between an item of

evidence and a matter properly provable in the case. Does the

item of evidence tend to prove the matter sought to be proved?

Whether the relationship exists depends upon principles

evolved by experience or science, applied logically to the

situation at hand. James, Relevancy, Probability and the Law,

29 Calif. L. Rev. 689, 696 n. 15 (1941), in Selected Writings

on Evidence and Trial 610, 615 n. 15 (Fryer ed. 1957). The

Rule summarizes this relationship as a “tendency to make the

existence” of the fact to be proved “more probable or less

probable.” Compare Uniform Rule 1(2) which states the crux

of relevancy as “a tendency in reason,” thus perhaps

emphasizing unduly the logical process and ignoring the need

to draw upon experience or science to validate the general

principle upon which relevancy in a particular situation

depends. Ultimately, legal reasoning depends upon logic, but

the logical calculus includes not only a priori knowledge but

facts, insights, and principles developed by scientific methods

or tested by experience.

The standard of probability under the Rule is

“more…probable than it would be without the evidence.” Any

more stringent requirement is unworkable and unrealistic. As

McCormick (2d ed.) § 185, at 436, says, “A brick is not a

wall,” or, as Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L. Rev. 574, 576 (1956), quotes Professor

McBaine,”…[I]t is not to be supposed that every witness can

make a home run.” Dealing with probability in the language of

the Rule has the added virtue of avoiding confusion between

questions of admissibility and questions of the sufficiency of

the evidence.

The words “any tendency” in the rule suggest that the court

should err, in doubtful cases, on the side of admissibility. For

example, courts need not exclude all cumulative evidence. The

fact that Witness 1 testifies to the existence of fact X does not

compel the conclusion that testimony by Witnesses 2 and 3 to

the same effect is not relevant. The probability that fact X

exists may increase when it becomes apparent that several

different people support it; corroboration may increase the

likelihood that the fact is true. At some point further corroboration will be of little help to the trier of fact, and the court will

either rule that the additional evidence is not relevant or will

exclude it under Rule 403.

The Rule uses the phrase “fact that is of consequence to the

determination of the action” to describe the kind of fact to

which proof may properly be directed. The language is that of

California Evidence Code § 210; it has the advantage of

avoiding the loosely used and ambiguous word “material.”

Tentative Recommendation and a Study Relating to the

Uniform Rules of Evidence (Art. I. General Provisions), Cal.

Law Revision Comm’n, Rep., Rec. & Studies, 10-11 (1964).

The fact to be proved may be ultimate, intermediate, or

evidentiary; it matters not, so long as it is of consequence in

the determination of the action. Cf. Uniform Rule 1(2) which

requires that the evidence relate to a “material” fact.

The fact to which the evidence is directed need not be in

dispute. While situations will arise which call for the exclusion

of evidence offered to prove a point conceded by the opponent,

the ruling should be made on the basis of such considerations

as waste of time and undue prejudice (See Rule 403), rather

ALASKA COURT RULES

than under any general requirement that evidence is admissible

only if directed to matters in dispute. Evidence which is

essentially background in nature can scarcely be said to

involve disputed matter, yet it is universally offered and

admitted as an aid to understanding. Charts, photographs,

views of real estate, murder weapons, and many other items of

evidence fall in this category. A rule limiting admissibility to

evidence directed to a controversial point would invite the

exclusion of this helpful evidence, or at least the raising of

endless questions over its admission. Cf. California Evidence

Code § 210, defining relevant evidence in terms of tendency to

prove a disputed fact.

Rule 402.

Relevant Evidence Admissible—

Exceptions—Irrelevant Evidence

Inadmissible.

This rule is nothing more than a codification of the common

law. The provisions that all relevant evidence is admissible,

with certain exceptions, and that evidence which is not relevant

is not admissible are “a presupposition involved in the very

conception of a rational system of evidence.” Thayer, Preliminary Treatise on Evidence 264 (1898). They constitute the

foundation upon which the structure of admission and

exclusion rests. All states which have codified their evidence

law have provided that all relevant evidence, with certain

exceptions, is admissible. The model for the rule was Federal

Rule of Evidence 402, modified to conform to the Alaska

judicial system. Nebraska adopted a similarly modified version

of Federal Rule 402, in Nebraska Rule of Evidence 27-402.

For similar provisions see also Maine Rule of Evidence 402

and New Mexico Rule of Evidence 20-4-402. Provisions that

all relevant evidence is admissible are found in Uniform Rule

7(f), Kansas Code of Civil Procedure § 60-407(b), and New

Jersey Evidence Rule 7(f), but the exclusion of evidence which

is not relevant is left to implication.

Not all relevant evidence is admissible. The exclusion of

relevant evidence may be called for by these rules; by other

rules, e.g. the Alaska Rules of Civil and Criminal Procedure;

by enactment of the legislature; or by constitutional

considerations.

Succeeding rules in the present article, in response to the

demands of particular policies, require the exclusion of

evidence despite its relevancy. In addition, Article V

recognizes a number of privileges; Article VI imposes

limitations upon witnesses and the manner of dealing with

them; Article VII specifies requirement with respect to

opinions and expert testimony; Article VIII excludes hearsay

not falling within an exception; Article X spells out the

handling of authentication and identification; and Article X

restricts the manner of proving the contents of writings and

recordings.

The Alaska Rules of Civil and Criminal Procedure in some

instances require the exclusion of relevant evidence. For

example, Rule 30(b) of the Rules of Civil Procedure, by

imposing the requirements of notice and opportunity to consult

counsel, limits the use of relevant depositions. Similarly, Rule

15 of the Alaska Rules of Criminal Procedure restricts the use

of depositions in criminal cases, even though relevant.

Alaska statutes restricting admissibility of relevant

evidence, for example by formulating a privilege or prohibition

against disclosure, are not affected by this rule. The rule

recognizes the power of the legislature to restrict admissibility.

See, e.g., AS 09.25.030 (governing evidence of representations

as to credit, skill, or character of third person); AS 12.45.030

(necessary evidence for false pretenses); AS 12.45.085 (notice

requirement for evidence of mental defect or disease); AS

28.35.120 (barring use of accident reports).

The rule recognizes but makes no attempt to spell out the

constitutional considerations which impose basic limitations

upon the admissibility of relevant evidence. Some such

limitations have roots in the United States Constitution; see,

e.g., evidence obtained in illegal search and seizure, Mapp v.

Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081 (1961); incriminating

statements obtained without proper warnings, Miranda v.

Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966); line-up

identifications made after indictment when the accused is

without counsel, Gilbert v. California, 388 U.S. 263, 18 L.Ed.

2d 1178 (1967). The Alaska Constitution may be the source of

further limitations. Cf. Lanier v. State, Alaska, 486 P.2d 981, at

986 (Alaska 1971):

In defining the scope of constitutional protections which

shall be afforded in Alaska courts, we are not limited to the

minimum constitutional guarantees as enunciated by the

United States Supreme Court. In appropriate circumstances we

may more broadly define the rights of the litigants.

Rule 403.

Exclusion of Relevant Evidence on

Grounds of Prejudice, Confusion, or

Waste of Time.

This rule is almost identical to Federal Rule of Evidence

403. The rule merely codifies the common law powers of the

court in this regard. The case law recognizes that certain

circumstances call for the exclusion of evidence which is of

unquestioned relevance. These circumstances entail risks

which range all the way from inducing decision on a purely

emotional basis, at one extreme, to nothing more harmful than

merely wasting time, at the other extreme. Situations in this

area call for balancing the probative value of and need for the

evidence against the harm likely to result from its admission.

Slough, Relevancy Unraveled, 5 Kan. L. Rev. 1, 12-15 (1956);

Trautman, Logical or Legal Relevancy—A Conflict in Theory,

5 Vand. L. Rev. 385, 392 (1952) McCormick (2d ed.) § 185, at

440-41.

The Federal Rule provides that the probative value must be

“substantially” outweighed by these other factors before

evidence is excluded. The problem with the word

“substantially” is that it seems to require admission of

evidence in cases where the court is certain that the evidence is

more harmful than helpful, but cannot say that the balance is

substantially one way or the other, only that it is as clear as it is

close. Alaska Rule 403 omits “substantially” on the theory that

the language “if its probative value is outweighed by…”0is a

clear enough indication of the balance the court is supposed to

strike in view of the further guidance to be found in the case

law.

If the balance between probative value and prejudicial effect

(signifying all of the factors discussed in this rule) is close, the

EVIDENCE RULES COMMENTARY

Judge should probably decide to admit the evidence. In other

words, there is a slight presumption in favor of admitting

relevant evidence. In order to overcome this minimal

presumption, the prejudicial effect must be demonstrably

greater than the probative value of the evidence.

Application of this principle should produce the same results

as the federal rule in most cases, but the fact that the balance is

kept clearly a matter of discretion rather than reduced to

measurement by the “substantial” yardstick, should free the

court to make the ruling more clearly promoting a just result.

The confusion attending the use of burden of persuasion

terminology is also avoided by the omission of “substantially”;

see, e.g., Gordon v. United States, 383 F.2d 936 (D.C. Cir.

1967), cert. denied, 390 U.S. 1029, 20 L.Ed.2d 287 (1968).

Exclusion for risk of unfair prejudice, confusion of issues,

misleading the jury, or waste of time, all find ample support in

the authorities. “Unfair prejudice” within its context means an

undue tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one.

The rule does not enumerate surprise as a ground for

exclusion, in this respect following Wigmore’s view of the

common law. 6 Wigmore § 1849. Cf. McCormick § 152, at

320, n.29, listing unfair surprise as a ground for exclusion but

stating that it is usually “coupled with the danger of prejudice

and confusion of issues.” While Uniform Rule 45 incorporates

surprise as a ground and is followed in Kansas Code of Civil

Procedure § 60-445, surprise is not included in California

Evidence Code § 352 or New Jersey Rule 4, though both the

latter otherwise substantially embody Uniform Rule 45. While

it can scarcely be doubted that claims of unfair surprise may

still be justified despite procedural requirements of notice and

instrumentalities of discovery (especially in criminal cases),

the granting of a continuance is a more appropriate remedy

than exclusion of the evidence. Tentative Recommendation and

a Study Relating to the Uniform Rules of Evidence (Art. n.

Extrinsic Policies Affecting Admissibility), Cal. Law Revision

Comm’n, Rep., Rec. & Studies, 612 (1964). Moreover, the

impact of a rule excluding evidence on the ground of surprise

would be difficult to estimate. It is assumed that if a continuance is not feasible and if the evidence giving rise to a claim of

surprise is somehow suspect, it may be excluded as prejudicial,

confusing, or misleading, in the sound exercise of judicial

discretion.

In reaching a decision whether to exclude on grounds of

unfair prejudice, consideration should be given to the probable

effectiveness or lack of effectiveness of a limiting instruction.

See Rule 105 and Reporter’s Comment thereunder. The

availability of other means of proof may also be an appropriate

factor.

The rules which follow in this Article are concrete

applications evolved for particular situations. However, they

reflect the policies underlying the present rule, which is

designed as a guide for the handling of situations for which no

specific rules have been formulated.

Rule 404.

Character Evidence Not Admissible to

Prove Conduct—Exceptions—Other

Crimes.

(a) Character Evidence Generally. This subdivision

deals with the basic question whether character evidence

should be admitted. Once the admissibility of character evidence in some form is established under this rule, reference

must then be made to Rule 405, which follows, in order to

determine the appropriate method of proof. If the character is

that of a witness, See Rules 608 and 610 for methods of proof.

Character questions arise in two fundamentally different

ways. (1) Character may itself be an element of a crime, claim,

or defense. A situation of this kind is commonly referred to as

“character in issue.” Illustrations are: the honesty of a victim in

an action for libel based on a statement that he is a thief where

truth is a defense, or the competency of the driver in an action

for negligently entrusting a motor vehicle to an incompetent

driver. No problem of the general relevancy of character

evidence is involved, and the present rule therefore has no

provision on the subject. The only question relates to allowable

methods of proof, as to which see Rule 405, immediately

following. (2) Character evidence is susceptible of being used

for the purpose of suggesting an inference that the person acted

on the occasion in question consistently with his character.

This use of character is often described as “circumstantial.”

Illustrations are: evidence of a violent disposition to prove that

the person was the aggressor in an affray, or evidence of

honesty in disproof of a charge of theft. This circumstantial use

of character evidence raises questions of relevancy as well as

questions of allowable methods of proof.

In most jurisdictions today, the circumstantial use of

character is rejected but with important exceptions: (1) an

accused may introduce relevant evidence of good character

(often misleadingly described as “putting his character in

issue”), in which event the prosecution may rebut with

evidence of bad character; (2) an accused may introduce

relevant evidence of the character of the victim, as in support

of a claim of self-defense to a charge of homicide or consent in

a case of rape, and the prosecution may introduce similar

evidence in rebuttal of the character evidence, or, in a

homicide case, to rebut a claim that deceased was the first

aggressor, and (3) the character of a witness may be gone into

as bearing on his credibility. McCormick (2d ed.) §§ 186-195.

The Federal Rule uses the word “pertinent” to describe the

character traits referred to above. This rule substitutes the word

“relevant” to emphasize the necessity for the evidence to

advance fact-finding and not merely to relate to the case. While

Rule 402 would bar irrelevant evidence in any event, this rule

emphasizes that general relevance concepts must be employed

in ruling on character evidence. See Morgan, Basic Problems

of Evidence 200 (1962).

There is a current trend, especially in rape cases, to exclude

all or much character evidence that relates to the victim.

Maine’s Rule of Evidence 404, for example, has excluded

character evidence relating to the victim in all cases. Total

exclusion may protect the victim against the introduction of

deeply personal facts in cases where introduction of such facts

is intended to embarrass the victim rather than help the

defendant, but it does so at the expense of allowing such

ALASKA COURT RULES

evidence to come in for the benefit of the accused when it

would substantially improve his case. This raises constitutional

problems. See Westen, Compulsory Process II, 74 Mich. L.

Rev. 191, 208-13 (1975); Davis v. Alaska, 415 U.S. 308, 39

L.Ed. 2d 347 (1974). By requiring the court to make

determinations on admissibility out of the presence of the jury,

an appropriate balance can be struck between the need of the

accused to present probative exculpatory evidence and the

socially desirable goal of protecting victims of crime from

embarrassment or harassment and encouraging them to come

forward with complaints and to participate in convicting the

guilty. If the probative value of character evidence is

outweighed by unfair prejudice, confusion of issues, or

unwarranted invasion of the victim’s privacy, the evidence will

be kept from the jury. There is no reason to suppose that only

rape victims need the added procedural precaution afforded by

this rule. The rule requires both the government and the

accused to utilize this procedure. Subdivision (a) (2) (iv)

incorporates the language of AS 12.45.045(b) adopting a

rebuttable presumption against admissibility of evidence of a

rape victim’s sexual conduct occurring more than one year

before the date of the offense charged.

Revision Commission in its ultimate rejection of Uniform Rule

47, id., at 615:

The word “prejudice” usually refers to prejudice to parties.

This rule is also concerned with the interest of non-party

complaining witnesses. In balancing the probative value of

character evidence against its tendency to invade the privacy of

the victim, the court must concern itself with the confrontation

clause of the Sixth Amendment. If there is a reasonable

probability that character evidence might legitimately help the

defense, invasion of the privacy of the victim is warranted. If

the evidence is of minimal probative value and is not

reasonably likely to assist the defense, invasion of the privacy

of the victim is unwarranted. The balance to be struck closely

resembles the balance governing claims of a government

privilege to protect the identity of an informant. See Rule 509

and proposed Federal Rule 510, recently discussed in State v.

Robinson, 549 P.2d 277 (N. Mex. 1976). See also United States

v. Turchick, 451 F.2d 333 (8th Cir. 1971).

The Federal Rule permits the prosecutor upon an accused’s

introduction of evidence of self-defense to respond with

evidence of the victim’s character. This is contrary to the

common law doctrine which requires the accused to actually

introduce evidence relating to the victim’s character before

opening the door to rebuttal by the prosecutor. See 1 Wigmore

§ 63; Annot., 34 A.L.R.2d 451 (1954). The 1969 and 1971

drafts followed the common law doctrine, but were revised in

the 1975 adopted rules to accommodate a recommendation by

Senator John L. McClellan. Letter to Hon. Albert Maris,

August 12, 1971, in Supp. to Hearings on Proposed Rules of

Evidence Before the Subcomm. on Crim. Justice of House

Comm. on the Judiciary, 93rd Cong., 1st Sess. 47, 48-49

(1973). Little attention was paid to the change during the

legislative hearings and debates.

The hearing out of the presence of the jury or in camera

envisioned by this rule should be on the record. Examination

and cross-examination of witnesses should be permitted, when

necessary, and the trial judge should exercise discretion to

assure that the record is complete. Cf. rule 103(b), supra. In the

event that the court determines that evidence should not be

admitted, in the interests of justice the court may order the

record of these proceedings sealed pending appellate review.

The argument is made that circumstantial use of character

ought to be allowed in civil cases to the same extent as in

criminal cases, i.e. evidence of good (nonprejudicial) character

would be admissible in the first instance, subject to rebuttal by

evidence of bad character. Falkner, Extrinsic Policies Affecting

Admissibility, 10 Rutgers. L. Rev. 574, 581-583 (1956);

Tentative Recommendation and a Study Relating to the

Uniform Rules of Evidence (Art. VI. Extrinsic Policies

Affecting Admissibility), Cal. Law Revision Comm’n, Rep.,

Rec. & Studies, 657-658 (1964). Uniform Rule 47 goes farther,

in that it assumes that character evidence in general satisfies

the conditions of relevancy, except as provided in Uniform

Rule 48. The difficulty with expanding the use of character

evidence in civil cases is set forth by the California Law

Character evidence is of slight probative value and

may be very prejudicial. It tends to distract the trier of fact

from the main question of what actually happened on the

particular occasion. It subtly permits the trier of fact to

reward the good man and to punish the bad man because of

their respective characters despite what the evidence in the

case shows actually happened.

Much of the force of the position of those favoring greater

use of character evidence in civil cases is dissipated by their

support of Uniform Rule 48 which excludes the evidence in

negligence cases, where it could be expected to achieve its

maximum usefulness. Moreover, expanding concepts of “character,” which seem of necessity to extend into such areas as

psychiatric evaluation and psychological testing, coupled with

expanded admissibility, would open up such vistas of mental

examinations as caused the Court concern in Schlagenhauf v.

Holder, 379 U.S. 104, 13 L.Ed.2d 152 (1964). It is believed

that those espousing change have not met the burden of

persuasion.

There remain arguments for permitting the accused to

introduce evidence of self-defense without automatically

allowing character evidence relating to the victim to come in.

Character evidence is suspect for the reasons quoted above.

When evidence of the victim’s character is offered, pressure

may be placed upon a defendant to explain his own character,

which would open the door to much damaging evidence. If the

defendant offers no evidence regarding his own character, the

Federal Rule imposes a penalty on the plea of self-defense by

allowing the introduction of evidence that may be used to

prove too much in a situation where the evidence of

self-defense is scanty. But this rule opts to admit evidence of

character when the victim of a homicide is attacked by the

defense as the first aggressor. In such cases the crime is grave,

the victim cannot tell a story, and there is some reason to

believe that a peaceable person is not likely to be the first

aggressor.

This rule only applies to character evidence relating to

people and does not operate to exclude evidence relating to the

character of a building. See AS 11.40.270 and 11.60.130.

(b)0Other Crimes, Wrongs, or Acts. Subdivision (b) deals

with a specialized but important application of the general rule

excluding circumstantial use of character evidence. Consis-

EVIDENCE RULES COMMENTARY

tently with that rule, evidence of other crimes, wrongs, or acts

is not admissible to prove character as a basis for suggesting

the inference that conduct on a particular occasion was in

conformity with it. However, the evidence may be offered for

another purpose, such as proof of motive, opportunity, and so

on, which does not fall within the prohibition. In this situation

the rule does not require that the evidence be excluded. No

mechanical solution is offered. The determination must be

made whether the danger of undue prejudice outweighs the

probative value of the evidence, in view of the availability of

other means of proof and other factors appropriate for making

decisions of this kind under Rule 403. See, e.g., Freeman v.

State, 486 P.2d 967 (Alaska 1971). See also Slough and

Knightly, Other Vices, Other Crimes, 41 Iowa L. Rev. 325

(1956). See also Demmert v. State, 565 P.2d 155 (Alaska 1977)

(other crimes evidence offered to prove intent). Of course,

“other crimes” evidence admissible under Rule 404(b) may be

excluded under Rule 403. Cf., In re F.S., 586 P.2d 607 (Alaska

1978).

Rule 405. Methods of Proving Character.

(a)0Reputation or Opinion. The common law traditionally

has provided that proof of character or a trait of character of a

person, when permitted, may be made by testimony as to

reputation only. Reputation evidence is usually presented by

calling a witness to the stand who is familiar with the reputation of the defendant, or perhaps the victim, if the victim’s

character is being challenged, and asking the witness to state

what the reputation is in the community where the defendant or

victim lives. The foundation for such testimony comes in the

form of establishing that the witness has sufficient familiarity

with the people in the community so that he can make a valid

attempt at assessing reputation.

The rationale for the limitation was best stated by Dean

Ladd:

The object of the law in making reputation the test of

character is to get the aggregate judgment of a community

rather than the personal opinion of the witness which might

be considered to be warped by his own feeling or prejudice.

Even reputation must, to be admitted, be general in a

community rather than based upon a limited class. While it

is not necessary that a character witness know what the

majority of a neighborhood think of a person, he must know

of the general regard with which the party is commonly

held.

It is the general concurrence of a great number of

people reflecting the sentiment toward the party whose

character is subject to inquiry that is necessary to establish a

reputation and to warrant its use as evidence. In this, the

theory of the law is that trustworthiness is gained from the

expressions of many people in their estimation of a person

which would not be obtained by the individual opinion of a

single witness however well acquainted he might be with

the party’s character.

The requirement that the reputation be broadly general

rather than that of a particular group…again emphasizes the

effort to get away from the secularized and consequently

biased estimate of character…0The reputed character of a

person is created from the slow spreading influence of

community opinion growing out of his behavior in the

society in which he moves and is known and upon this basis

is accepted as proof of what his character actually is.

Ladd, Techniques and Theory of Character Testimony, 24

Iowa L. Rev. 458, 513 (1939).

There is a growing trend in common law jurisdictions to

permit testimony as to the person’s reputation where he works,

as well as where he lives. The Federal Rule, on which this Rule

is modeled, does not indicate the scope of reputation evidence.

This rule fills a gap left in the Federal Rule by clearly stating

that reputation evidence is not confined to the community in

which the defendant lives; reputation where the defendant

works, goes to school or in a group with whom the defendant

habitually associates will suffice. See Uniform Rule 63(28)

(1953); McCormick, Evidence § 191, at 456; 112 A.L.R. 1020

(1938).

While not explicitly required by the rule, reputation

evidence to be relevant must relate to the period in which the

acts giving rise to the litigation took place. The evidence must

relate to a relevant trait of character under Rule 404.

Besides expanding the scope of permissible reputation

evidence, this rule departs from the majority common law view

in permitting opinion evidence to be admitted. It is consistent,

however, with recent Alaska cases. See, e.g., Freeman v. State

486 P.2d 967 (Alaska 1971). This was considered such a

controversial issue that the House Committee on the Judiciary

deleted the provision allowing for opinion evidence in its

proposed draft of rules. During the House debate, the provision

was reinstated. The case for opinion testimony is made by

Wigmore:

Put any one of us on trial for a false charge, and ask

him whether he would not rather invoke in his vindication,

as Lord Kenyon said, “The warm affectionate testimony” of

those few whose long intimacy and trust has made them

ready to demonstrate their faith to the jury, than any amount

of colorful assertions about reputation. Take the place of a

juryman, and speculate whether he is helped more by the

witnesses whose personal intimacy gives to their belief a

first and highest value, or by those who merely repeat a

form of words in which the term “reputation” occurs.

7 Wigmore, Evidence § 1936, at 166.

In opening the door to this evidence, Rule 405 places both

familiar and new responsibilities on the trial judge.

He will have to exercise firm control over the

proceedings to ensure that the witness does not relate the

particular incidents on which he bases his opinion of

defendant—for proof of character by specific acts is still

prohibited. And as with all testimony, he will have to weigh

its probative value against the countervailing factors to

admissibility specified in Rule 403.

2 Weinstein’s Evidence, ¶ 405[03] (1975). In exercising the

sound discretion required by Rule 403, the trial judge should

be able to handle the new types of opinion testimony that may

be offered when Rule 405 is considered in conjunction with

other Rules that expand categories of admissible evidence. See,

People v. Jones, 266 P.2d 38 (Cal. 1954); cf., United States v.

Hiss, 88 F. Supp. 559 (S.D.N.Y. 1950). See generally Curran,

Expert Psychiatric Evidence of Personality Traits, 103 U. Pa.

ALASKA COURT RULES

L. Rev. 999 (1955); Falknor & Steffen, Evidence of Character:

From the “Crucible of the Community” to the “Couch of the

Psychiatrist,” 102 U. Pa. L. Rev. 980 (1954). Alaska has had

experience with novel types of opinion. See Freeman v. State,

supra.

stems from the inability to precisely define “habit.” It is clear

that the more regular the performance of an act, the more likely

it is to be regarded a habit. An oft-quoted paragraph,

McCormick (2d ed.) § 195, at 462, describes habit in terms

effectively contrasting it with character.

As discussed in the next paragraph, specific acts cannot be

used to prove character unless a character trait is in issue. But

specific acts can be used to prove the knowledge of a character

witness on cross-examination. According to the great majority

of cases, on cross-examination inquiry is allowable as to

whether the reputation witness has heard of particular instances

of conduct relevant to the trait in question if the crossexaminer

has a good faith belief that the conduct actually took place.

Michelson v. United States, 335 U.S. 469, 93 L.Ed. 168 (1948);

Annot., 47 A.L.R.2d 1258 (1956). The theory is that, since the

reputation witness relates what he has heard, the inquiry tends

to shed light on the accuracy of his hearing and reporting.

Accordingly, the opinion witness would be asked whether he

knew, as well as whether he had heard. The fact is, of course,

that these distinctions are of slight if any practical significance,

and the second sentence of subdivision (a) eliminates them as a

factor in formulating questions. This recognition of the

propriety of inquiring into specific instances of conduct does

not circumscribe inquiry otherwise into the bases of opinion

and reputation testimony.

Character and habit are close akin. Character is a

generalized description of one’s disposition, or of one’s

disposition in respect to a general trait, such as honesty,

temperance, or peacefulness. “Habit,” in modern usage, both

lay and psychological, is more specific. It describes one’s

regular response to a repeated specific situation. If we speak

of character for care, we think of the person’s tendency to

act prudently in all the varying situations of life, in business,

family life, in handling automobiles and in walking across

the street. A habit, on the other hand, is the person’s regular

practice of meeting a particular kind of situation with a

specific type of conduct, such as the habit of going down a

particular stairway two stairs at a time, or of giving the

hand-signal for a left turn, or of alighting from railway cars

while they are moving. The doing of the habitual acts may

become semiautomatic.

(b)0Specific Instances of Conduct. Of the three methods of

proving character provided by the rule, evidence of specific

instances of conduct is the most convincing. At the same time

it poses the greatest capacity to arouse prejudice, to confuse, to

surprise, and to consume time. Consequently the Rule confines

the use of evidence of this kind to cases in which character is,

in the strict sense, in issue and hence deserving of a searching

inquiry. When character is used circumstantially and hence

occupies a lesser status in the case, proof may be only by

reputation and opinion. These latter methods are also available

when character is in issue. This treatment is, with respect to

specific instances of conduct and reputation, conventional

contemporary common law doctrine. McCormick (2d ed.)

§ 187.

Probably the most familiar example of character being in

issue is the libel case where someone publishes a charge that

the plaintiff is a thief, plaintiff sues the publisher, and a defense

of truth is raised. The publisher is entitled to show the specific

acts that prove the charge. Another familiar example is a case

in which an employer is charged with negligently hiring or

retaining an incompetent employee. On the question of the

competence of the employee, both sides are entitled (and may

have to in order to satisfy burden of proof requirements) to

offer evidence of specific acts of the employee demonstrating

competence or incompetence.

In determining whether evidence shall be admissible, the

court may look to Rule 104 and make a preliminary

determination that it is a habit or a routine business practice

that is being described. When an activity fails to achieve the

status of a habit, evidence as to its practice must be excluded.

Certain practices are not readily defined as “habits.” For

example, in Levin v. United States, 338 F.2d 265 (D.C. Cir.

1964), testimony as to the religious “habits” of the accused,

offered as tending to prove that he was at home observing the

Sabbath rather than out obtaining money through larceny by

trick, was held properly excluded:

It seems apparent to us that an individual’s religious

practices would not be the type of activities which would

lend themselves to the characterization of “invariable

regularity.” [1 Wigmore 520.] Certainly the very volitional

basis of the activity raises serious questions as to its

invariable nature, and hence its probative value.

Id. at 272.

Habit—Routine Practice.

Evidence of a routine practice of an organization may be as

relevant as a person’s habit in proving that an act was

performed in a certain way or that an event took place. The

circumstantial nature of the proof requires that the routine

specifically describe a particular organization’s manner of

daily operation or the probative value is greatly diminished.

Since an organization must often rely upon consistent performance in order to make a profit or otherwise succeed, evidence

of routine practices may be more probative in many cases than

habit evidence. And the nature of this evidence is such that it is

not likely to be very prejudicial. This rule does not refer to the

practice of a given trade or industry, except insofar as it

parallels a specific company’s routines.

This rule is identical to Federal Rule 406 which confirms the

trend toward admissibility of habit and routine practice as

persuasive proof of conduct on a particular occasion. The

difficulty arises in distinguishing habit evidence from character

evidence which is viewed as a less reliable and potentially

more dangerous means of establishing the likelihood of

specific conduct on a particular occasion. In part the difficulty

This rule specifically states that corroboration of a habit is

unnecessary as a condition precedent to its admissibility. New

Jersey adopted a similar policy in its Rule 49, rejecting its

previous requirement that a necessary condition for the

introduction of habit evidence was the introduction of other

evidence that the habit was followed in the particular occasion

in question. The New Jersey Commission stated that habit or

Rule 406.

EVIDENCE RULES COMMENTARY

custom alone is evidential as to conduct on a particular

occasion and that corroboration goes only to weight.

To require corroborative evidence that on that date the

behavior did conform to the proven habit would be to defeat

the purpose of the rule and put an unnecessary hurdle in the

path of the attorney with circumstantial proofs only.

Report of the Committee on the Revision of the Law of

Evidence to the Supreme Court of New Jersey 101 (1955).

This rule specifically rejects the common law “eyewitness

rule.” Followed in a great number of jurisdictions, the

eyewitness rule only permits evidence of a habit to be

admissible where no eyewitnesses are available to testify about

the events in question. There are reasons to be wary of habit

evidence: individuals may consciously take advantage of a

known habit as an alibi, well-established habits do not always

govern behavior, and habits sometimes may be easy to

fabricate but difficult to refute. These problems are not

insoluble. By requiring repetitive acts, this rule should make

fabrication more difficult and should enable the cross-examiner

to fully explore the specifics of the habit claim. Moreover,

habit evidence is not unique in its imperfections. The

eyewitness rule does not take into account the fact that

evidence of an established habit may be more reliable than the

testimony of an eyewitness. The Law Revision Commission’s

Comment to California’s Rule § 1105, 29b West Ann. Cal.

Evid. Code 19 (1966), which also rejects the eyewitness rule

states:

The “no eyewitness” limitation is undesirable.

Eyewitnesses frequently are mistaken, some are dishonest.

The trier of fact should be entitled to weigh the habit

evidence against the eyewitness testimony as well as all of

the evidence in the case.

This provision, like its federal counterpart, is silent as to the

means of proof that a habit or routine practice existed. The

1969 and 1971 drafts of the proposed federal rules contained a

provision which specified that habit or routine practice may be

proved by testimony in the form of an opinion or by specific

instances of conduct sufficient in number to warrant a finding

that the habit existed or that the practice was routine. Congress

deleted the section in favor of allowing courts to develop and

consider various methods of proof. This rule anticipates that

any relevant manner of proof may be employed, subject to

Rule 403’s requirements that the proof be more probative than

prejudicial, confusing, or misleading and that the probative

value justify the time needed to hear the evidence.

Rule 407.

Subsequent Remedial Measures.

This rule is modeled on Federal Rule 407, which

incorporates conventional doctrine excluding evidence of

subsequent remedial measures as proof of an admission of

fault.

The rule rests on three grounds. (1) The conduct is not in

fact an admission, since the conduct is equally consistent with

injury by mere accident or through contributory negligence.

Or, as Baron Bramwell put it, the rule rejects the notion that

“because the world gets wiser as it gets older, therefore it was

foolish before.” Hart v. Lancashire & Yorkshire Ry. Co., 21

L.T.R. N.S. 261, 263 (1869). Under a liberal theory of

relevancy this ground alone would not support exclusion as the

inference is still a possible one. (2) The second ground for

exclusion rests on a social policy of encouraging people to

take, or at least not discouraging them from taking, steps in

furtherance of added safety. This assumes, however, that many

repairs would not be made but for the exclusionary rule, a

proposition subject to serious empirical challenge. (3) The

third and perhaps most important reason for the Rule is that

people who err on the side of caution and take measures to

protect fellow citizens from even the possibility of injury

should not bear the risk that the jury, unlike Baron Bramwell,

will read more into a repair than is warranted.

The courts have applied this principle to exclude evidence

of subsequent repairs, installation of safety devices, changes in

company rules, and discharge of employees, and the language

of the present rule is broad enough to encompass all of them.

See Falknor, Extrinsic Policies Affecting Admissibility, 10

Rutgers L. Rev. 574, 590 (1956).

The second sentence of the rule directs attention to the

limitations of the rule.

Rule 407 explicitly bars the use of subsequent remedial

measures to prove negligence. It also inhibits the use of the

evidence to prove “culpable conduct,” which may include fault

other than negligence, e.g., recklessness (wantonness,

willfulness). There is often no clear distinction between

recklessness and gross negligence (see Prosser, Torts § 34 (4th

ed. 1971)); consequently the policy arguments mentioned

above apply equally to both.

In effect Rule 407 rejects the suggested inference that fault

is admitted. Other inferences are, however, allowable,

including defective condition in a products liability action,

ownership or control, existence of duty, and feasibility of

precautionary measures, if controverted, and impeachment. 2

Wigmore § 283; Annot., 64 A.L.R.2d 1296. A recent Alaska

case is illustrative. In Kaatz v. State, 540 P.2d 1037 (Alaska

1975), actions were brought against the State to recover for

deaths of the driver of and passenger in a front-end loader

which slipped off an icy highway and overturned. In reviewing

the finding of negligence on the part of the State, the Supreme

Court of Alaska noted that shortly after the accident, the road

in question was sanded. Citing Federal Rule 407, the Court

emphasized that the evidence was not used to show negligence

directly, but to show feasibility of repair. Admission for this

purpose was deemed proper.

There are few cases and few scholarly discussions of the

applicability of this exclusionary principle in products liability

cases. Unlike most rules that have been promulgated, this Rule

explicitly excepts from the reach of the exclusionary rule the

use of subsequent remedial measures to show a defect in a

product. The reasons mentioned above for the general rule do

not apply in a products liability case because,

[T]he focus of attention in strict liability cases is not on

the conduct of the defendant, but rather on the existence of

the defective product which causes injuries. Liability is

attached, as a matter of policy, on the basis of the existence

of a defect rather than on the basis of the defendant’s

negligent conduct0.0.0.0.

Bachner v. Pearson, 479 P.2d 319, 329 (Alaska 1970).

ALASKA COURT RULES

Evidence of subsequent repairs or improvements may be

highly probative as to the existence of a defect in a product at

the time of an accident. In common law jurisdiction such

evidence has been regarded as relevant to the issue of

defectiveness in negligence-based cases and admissible, e.g.,

Steele v. Wiedemann Mach. Co., 280 F.2d 380 (3d Cir. 1960).

admitted for any relevant purpose. But this exception can be

artfully dodged by the attorney who specifies that all factual

statements are hypothetical, or who states in advance that the

discussion is “without prejudice.” See Annot., 15 A.L.R. 3d 13

(1967). See also Alaska R. Civ. P. 43(i) (2) (superseded by this

rule).

Moreover, the rationale of not discouraging repairs or

improvement does not justify excluding this evidence in the

products liability case. The California Supreme Court

appropriately observed in Ault v. International Harvester Co.,

528 P.2d 1148, 1152 (Cal. 1975), a decision rejecting this

exclusionary rule in products liability cases, that

This rule expands the scope of protection afforded

compromise negotiations by eliminating the common law

exception and making statements of fact and conduct which

are made or which occur during settlement negotiations

inadmissible whenever an offer to compromise would be

excluded. See California Evidence Code §§ 1152, 1154 for

similar provisions. In addition to eliminating the need to talk

continually in hypothetical terms, this change promotes the

major policy behind the rule—to encourage settlement of

disputes. It also avoids preliminary factfinding as to what was

said during negotiating sessions, i.e., whether statements were

made in hypothetical or “without prejudice” form.

[t]he contemporary corporate mass producer of goods,

the normal products liability defendant, manufactures tens

of thousands of units of goods; it is manifestly unrealistic to

suggest that such a producer will forego making

improvement in its product, and risk innumerable additional

lawsuits and the attendant adverse effect upon its public

image, simply because evidence of adoption of such improvement may be admitted in an action founded on strict

liability for recovery on an injury that preceded the

improvement. In the products liability area, the exclusionary

rule of section 1151 [California equivalent of Rule 407]

does not affect the primary conduct of this mass producer of

goods, but serves merely as a shield against potential liability.

Since the manufacturer of a product makes more of a

business judgment than a humanitarian gesture in making

repairs, the third rationale for the rule is not applicable either.

Of course, when evidence is admitted for any of these “other

purposes,” the court should instruct the jury to consider it only

for the limited purpose for which it is offered, not on the issue

of negligence or culpable conduct. It is important to note that

the requirement that the other purpose be controverted calls for

automatic exclusion unless a genuine issue is present and

allows the opposing party to lay the groundwork for exclusion

by making an admission. If, for example, control is not controverted, there is no reason to admit subsequent remedial

measures to prove control, and there is a good reason to

exclude it: evidence of subsequent remedial measures might be

used by the jury as an admission of fault regardless of the

limiting instruction given by the court.

It is also important to keep in mind that even if the issue is a

valid one, the factors of undue prejudice, confusion of issues,

misleading the jury, and waste of time remain for consideration

under Rule 403.

For comparable rules, see Uniform Rule 51; California

Evidence Code § 1151; Kansas Code of Civil Procedure

§ 60-451; Nebraska Rule 27-407; Nevada Rule 48.095; New

Jersey Evidence Rule 51; and New Mexico Rule 20-4-407.

Rule 408.

Compromise and Offers to Compromise.

This rule, like the common law doctrine, operates to exclude

evidence of an offer to compromise a claim when offered to

prove the validity, invalidity or amount of the claim. Under the

prevailing common law view, statements of fact made

independently of the compromise offer—i.e., statement not

inextricably bound up in the offer to compromise—can be

The Advisory Committee’s comment to the Federal Rule

after which this rule is modeled cites two rationales for a rule

of exclusion. (1) The evidence is irrelevant, since the offer may

be motivated by a desire for peace rather than from any

concession of weakness of position. The validity of this

position will vary as the amount of the offer varies in relation

to the size of the claim and may also be influenced by other

circumstances. (2) A more consistently impressive ground is

promotion of the public policy favoring the compromise and

settlement of disputes. McCormick § 274, at 663. While the

rule is ordinarily phrased in terms of offers of compromise, it

is apparent that a similar attitude must be taken with respect to

a completed compromise when offered against a party thereto.

This latter situation will not, of course, ordinarily occur except

when a party to the present litigation was compromised with a

third person.

Unless the amount of the claim or the claim itself is in

dispute, the policy of encouraging freedom of communication

with respect to compromise is not advanced. Hence the rule

does not apply when the effort is to induce a creditor to settle

an admittedly due amount for a lesser sum. McCormick (2d

ed.) § 274, at 663. See also Uniform Rules 52 and 53 for

similar provisions. An offer to pay the full amount in dispute is

admissible as an unconditional acknowledgment of liability

because it is not conditioned on a compromise. See Saxton v.

Harris, 395 P.2d 71 (Alaska 1964).

This Rule governs whether or not any compromise that is

reached is carried out. Some common law jurisdictions admit

completed settlements as evidence if they are not successful in

terminating litigation. Nothing in this rule prevents the use as

evidence of settlement agreements in subsequent contract

actions, however.

This rule differs from the federal rule by explicitly providing

that statements made during negotiations must not be used for

impeachment as prior inconsistent statements of a party. This

further protection is required in order to encourage free and

open negotiations and to foster settlements. It may be

necessary to “concede” issues to an opponent to advance

negotiations which are not issues that one would readily

concede for purposes of proving liability. If impeachment is

allowed, the common law requirement of communicating in

EVIDENCE RULES COMMENTARY

hypothetical terms would, for all practical purposes, be

reinstated. Unless the parties to the negotiation are insured that

they will not prejudice the merits of their respective cases,

communications will be guarded. As recognized in Rule 410,

admissibility of guilty pleas later withdrawn or offers to plead

guilty for purposes of impeachment would effectively stifle the

open communication needed to promote compromise. The

same is true in civil cases.

Where statements made in compromise negotiations are not

used to advance litigation relating to the validity, invalidity or

amount of the underlying claim admission is proper. Collateral

uses such as those mentioned in the final sentence of the rule

are supported by existing authorities. E.g., proving bias or

prejudice of a witness, see Annot., 161 A.L.R. 395 (1946);

negativing a contention of lack of due diligence in presenting a

claim, 4 Wigmore § 1061. See also Alaska R. Civ. P. 68 in

which evidence of an unaccepted offer of judgment is admissible on the collateral issue of determining costs. An effort to

“buy off” the prosecution or a prosecuting witness in a

criminal case is not within the policy of the rule of exclusion.

This rule further provides that evidence which would

otherwise be discoverable is not rendered inadmissible merely

because it was presented during negotiations. A party should

not be able to immunize documents by once revealing them; no

policy is advanced by such protection. Where statements made

during negotiations lead to the discovery of relevant evidence

it shall not be rendered inadmissible merely because the

information obtained could not have been introduced into

evidence in the form of statements made during negotiations.

Rule 409.

Payment of Medical and Other Expenses.

The considerations underlying this rule parallel those

underlying Rules 407 and 408, which deal respectively with

subsequent remedial measures and offers of compromise. As

stated in Annot., 20 A.L.R.2d 291, 293 (1951):

[G]enerally, evidence of payment of medical, hospital,

or similar expenses of an injured party by the opposing

party, is not admissible, the reason often given being that

such payment or offer is usually made from humane

impulses and not from an admission of liability, and that to

hold otherwise would tend to discourage assistance to the

injured person.

Contrary to Rule 408, dealing with offers of compromise,

the present rule does not extend to conduct or statements not a

part of the act of furnishing or offering or promising to pay.

This difference in treatment arises from fundamental differences in nature. Communication is essential if compromises are to

be effected, and consequently broad protection of statements is

needed. This is not so in cases of payments or offers or

promises to pay medical expenses, where factual statements

may be expected to be incidental in nature and where protecting such statements would not encourage the approved

behavior. A party can offer to pay medical expenses without

making statements as to liability.

This rule, unlike Rule 408, does not require that liability or

amount be in dispute. Prompt payment of medical and other

expenses is encouraged and the humanitarian nature of the

payment or offer is highlighted.

If liability or amount is in dispute, an offer to pay medical

expenses may be part of a compromise negotiation. Once the

offer becomes part of the negotiating process, any statements

or conduct made in compromise negotiations will be protected

under Rule 408.

Evidence of an offer to pay or of a completed payment of

medical expenses may be admissible for purposes other than

proving liability or amount. In this respect the rule is like Rule

408. When the issue upon which the evidence is offered is

collateral to the merits of the case, admission may be proper.

For example, if A is involved in an accident with B and C, and

A pays B’s medical expenses, C may want to introduce this

evidence to show the possible bias of B as a witness.

Rule 410.

Inadmissibility of Plea Discussions in

Other Proceedings.

Rule 410 is modeled on former rule 11(e) (6) of the Alaska

Rules of Criminal Procedure, which is superseded by this rule.

It differs in substantial respects from its federal counterpart.

The basic goals of the rule are two: (1) to foster free and open

negotiations between prosecutors and those accused of crimes,

and (2) to ensure fair treatment for defendants whose guilty

pleas are set aside by a trial or an appellate court.

To foster negotiations the rule provides that nothing that is

said during plea bargaining may be used against the accused in

any proceeding, whether criminal, civil or administrative.

Thus, the accused is free to discuss the case without resort to

hypothetical statements of fact and without fear that a slip of

the tongue may be devastating at a later trial or other

proceeding.

To ensure fair treatment for defendants whose pleas are

entered and later withdrawn or overturned, this rule provides

that the slate should be wiped clean and that no part of the plea

process can be used for impeachment or any purpose against

the defendant in subsequent proceedings (unless made in court,

and they are voluntary and reliable) or in a perjury prosecution.

This is in sharp contrast to Federal Rule 410. As amended in

December, 1975 by the Congress, the Federal Rule provides

that a statement made in connection with a plea “is admissible

in a criminal proceeding for perjury or false statement if the

statement was made by the defendant under oath, on the

record, and in the presence of counsel.” Alaska Rule 410 offers

defendants greater protection: when a plea is withdrawn or

otherwise set aside, no use shall be made on the merits of a

subsequent case of any statement made in connection with a

plea, even though that statement may have been made in court,

under oath and with the advice of counsel. However, limited

impeachment use is recognized.

Note, however, that this rule does not prohibit admission of

statements made by the defendant during the plea process at a

hearing on defendant’s motion to withdraw a plea. In this

situation the statements are subject only to the requirement of

relevance.

It is important to observe that leave to withdraw a guilty or

nolo contendere plea, once accepted, is not a matter of right;

the burden is on the defendant to convince the court that

withdrawal of a plea should be permitted in the court’s discretion upon grounds set forth in Alaska R. Crim. P. 32(d). The

most common ground for withdrawal is that the plea was

ALASKA COURT RULES

involuntarily made. Clearly, when the plea was involuntarily

made, statements made in connection with it are likely to be

unreliable as well; due process would probably require the

suppression of both plea and statements.

This rule admits statements found to be both voluntary and

reliable that are made in court. Such statements should be very

useful for impeachment purposes and are worthy of

consideration by a trier of fact considering the credibility of a

witness.

In deciding whether or not a statement made in connection

with a plea in court is voluntary, the court will consider many

of the same questions that arise with respect to confessions. In

determining whether the plea statements are reliable, the court

must keep in mind that the traditional colloquy between court

and defendant is not without its problems, since the defendant

is attempting to preserve a bargain in many instances. Hence,

even though the defendant may be under oath and uncoerced in

any constitutional sense, he is under great pressure to conform

his answers to the plea agreed to, in order to satisfy the judge

that “there is a reasonable basis for the plea” under Alaska R.

Crim. P. 11(f). Such statements by the defendant are neither

clarified by defense counsel nor qualified by the defendant.

At first blush it may appear that this rule is inconsistent with

Rule 408 with respect to the use of statements made during

bargaining for impeachment purposes. But the inconsistency is

more apparent than real. In both rules, statements made during

private bargaining sessions are not admissible for

impeachment purposes. This rule reflects the fact that

statements made in court can be especially reliable, especially

with the safeguards provided herein. No such in-court

procedure exists in most civil cases. In both civil and criminal

cases parties should be able to negotiate freely without fear

that a slip of the tongue will be unfairly damaging should no

bargain be made. But Rule 410 adopts the view that once the

informal bargaining is over and the solemn procedure of

pleading in court begins, it is both fair and wise to hold a

criminal defendant responsible for statements made to the

court when the defendant takes a different position later and

the plea statements are used for impeachment.

To provide balance, statements made by the prosecutor

during the bargaining process are not admissible against the

government in any proceeding, except that the defendant may

use the prosecutor’s statements as evidence in a hearing to

enforce a plea agreement see generally Santobello v. New York,

404 U.S. 257, 30 L.Ed. 2d 427 (1971) or to set aside a plea or

judgment. In most common law jurisdictions this rule might

not be necessary, because statements by an agent of a party

would not be admissible against the party unless the agent

were specifically authorized to make such statements; the

prosecutor may not be so authorized. But under Rule 801 (d)

(2) (D) the admissibility of agents’ statements is expanded.

Rule 410 makes it clear that the prosecutor is as free to

negotiate without watching for every slip of the tongue as the

defendant is. Nothing in this section prohibits the introduction

of statements made by a prosecutor during plea bargaining in a

disciplinary action against the prosecutor, or even in a criminal

action against the prosecutor. The prosecutor who abuses the

public trust is not protected by this Rule.

Statements made by defense counsel on behalf of an accused

can be used against counsel in a subsequent civil case or

disbarment proceeding, since the rule is not designed to protect

from disclosure malpractice or ethical violations.

Nothing in this rule makes nolo contendere pleas admissible

as admissions. But Rule 609 does make certain nolo contendere pleas admissible for impeachment purposes.

Rule 411.

Liability Insurance.

The courts have with substantial unanimity rejected

evidence of liability insurance for the purpose of proving fault,

and absence of liability insurance as proof of lack of fault. See

Annot., 4 A.L.R.2d 761 (1949). Because the inference of fault

from the fact of insurance coverage is a tenuous one, as is its

converse, evidence of insurance coverage or of the absence of

such coverage lacks great probative value on the issue of fault.

More importantly, perhaps, the rule is designed to prevent a

jury from deciding a close case on an improper basis—i.e.,

whether or not a party is insured. There is a danger that insurance evidence might skew the decision-making process of the

jury by making it regret a possibly wrong decision against an

uninsured person much more than a similar decision under

identical fac

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