# ALASKA RULES OF COURT > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/court_rules%3Aak%3Acc540d55d7e79df4 ## Record - **Collection:** Court rules - **Document type:** Court rule ## Text ALASKA RULES OF COURT 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. (c) Rules Inapplicable. (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. (c) Hearing of Jury. (d) Plain Error. 104 Preliminary Questions. (a) Questions of Admissibility Generally. (b) Relevancy Conditioned on Fact. (c) Hearing of Jury. (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. (c)0and (d)0When Discretionary—When Mandatory. Judicial Notice of Law. (a) Scope of Rule. (b) Without Request—Mandatory. (c) Without Request—Optional. (d) With Request—Mandatory. Procedure for Taking Judicial Notice. (a) Determining Propriety of Judicial Notice. (b) Time of Taking Notice. (c) Instructing the Jury. ARTICLE III. PRESUMPTIONS 301 302 303 Presumptions in General in Civil Actions and Proceedings. (a) Effect. (b) Prima Facie Evidence. (c) Inconsistent Presumptions. Applicability of Federal Law in Civil Actions and Proceedings. Presumptions in General in Criminal Cases. (a) Effect. (b) Prima Facie Evidence. (c) Inconsistent Presumptions. 1 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 2 Privileges Recognized Only as Provided. Required Reports Privileged by Statute. Lawyer-Client Privilege. (a) Definitions. (b) General Rule of Privilege. (c) Who May Claim the 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. (c) Who May Claim the Privilege. Political Vote. Trade Secrets. EVIDENCE RULES COMMENTARY 509 510 511 512 Identity of Informer. (a) Rule of Privilege. (b) Who May Claim. (c) Exceptions. (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. (c) Jury Instruction. (d) Application—Self-Incrimination. ARTICLE VI. WITNESSES 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 EV 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. (c) Admissibility. Impeachment by Evidence of Conviction of Crime. (a) General Rule. (b) Time Limit. (c) Admissibility. (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. (c) Leading Questions. Writing Used to Refresh Memory. (a) While Testifying. (b) Before Testifying. (c) Claims of Privilege or Irrelevance. (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. (c) Objections. Exclusion of Witnesses. ARTICLE VII. OPINION TESTIMONY 701 Opinion Testimony by Lay Witnesses. 3 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. (c) Balancing Test—Limiting Instructions. Court Appointed Experts. (a) Appointment. (b) Disclosure of Appointment. (c) Parties’ Experts of Own Selection. ARTICLE VIII. HEARSAY INTRODUCTORY REPORTER’S COMMENT 801 802 803 804 805 806 4 Definitions. (a) Statement. (b) Declarant. (c) Hearsay. (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. EV 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. (c) Original in Possession of Opponent. (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. 5 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]. (c)0Rules Inapplicable. It should be noted that this rule 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). 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). (c)0Hearing of Jury. A ruling excluding evidence may be 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 7 EV 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- 8 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. (c)0Hearing of Jury. Preliminary hearings on the 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 9 EV 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 10 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- 11 EV 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 12 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. (c)0and (d)0When Discretionary—When Mandatory. 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 13 EV 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. (c) Without Request—Optional. This subdivision 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 14 Alaska Administrative Register. See also 44 U.S.C.A. § 1507, providing for judicial notice of the contents of the Federal Register; and Alaska Airlines, Inc. v. Northwest Airlines, Inc., 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. (c)0Instructing the Jury. In civil cases, the rule 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 15 EV 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 16 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. (c)0Inconsistent 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: 17 EV 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 18 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). (c)0Inconsistent Presumptions. The reason for this 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 19 EV 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. 20 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 21 EV 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 22 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. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Aak%3Acc540d55d7e79df4. Public record. Not legal advice.