Alaska R. Evid. 404 commentary

(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

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.

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 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

Revision Commission in its ultimate rejection of Uniform Rule

47, id., at 615:

Character evidence is of slight probative value and

may be very prejudicial. It tends to distract the trier of fact

from the main question of what actually happened on the

particular occasion. It subtly permits the trier of fact to

reward the good man and to punish the bad man because of

their respective characters despite what the evidence in the

case shows actually happened.

Much of the force of the position of those favoring greater

use of character evidence in civil cases is dissipated by their

support of Uniform Rule 48 which excludes the evidence in

negligence cases, where it could be expected to achieve its

maximum usefulness. Moreover, expanding concepts of “character,” which seem of necessity to extend into such areas as

psychiatric evaluation and psychological testing, coupled with

expanded admissibility, would open up such vistas of mental

examinations as caused the Court concern in Schlagenhauf v.

Holder, 379 U.S. 104, 13 L.Ed.2d 152 (1964). It is believed

that those espousing change have not met the burden of

persuasion.

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.

There remain arguments for permitting the accused to

introduce evidence of self-defense without automatically

allowing character evidence relating to the victim to come in.

Character evidence is suspect for the reasons quoted above.

When evidence of the victim’s character is offered, pressure

may be placed upon a defendant to explain his own character,

which would open the door to much damaging evidence. If the

defendant offers no evidence regarding his own character, the

Federal Rule imposes a penalty on the plea of self-defense by

allowing the introduction of evidence that may be used to

prove too much in a situation where the evidence of

self-defense is scanty. But this rule opts to admit evidence of

character when the victim of a homicide is attacked by the

defense as the first aggressor. In such cases the crime is grave,

the victim cannot tell a story, and there is some reason to

believe that a peaceable person is not likely to be the first

aggressor.

This rule only applies to character evidence relating to

people and does not operate to exclude evidence relating to the

character of a building. See AS 11.40.270 and 11.60.130.

(b) Other Crimes, Wrongs, or Acts. Subdivision (b) deals

with a specialized but important application of the general rule

excluding circumstantial use of character evidence. Consistently with that rule, evidence of other crimes, wrongs, or acts

is not admissible to prove character as a basis for suggesting

the inference that conduct on a particular occasion was in

conformity with it. However, the evidence may be offered for

another purpose, such as proof of motive, opportunity, and so

on, which does not fall within the prohibition. In this situation

the rule does not require that the evidence be excluded. No

mechanical solution is offered. The determination must be

made whether the danger of undue prejudice outweighs the

probative value of the evidence, in view of the availability of

other means of proof and other factors appropriate for making

decisions of this kind under Rule 403. See, e.g., Freeman v.

State, 486 P.2d 967 (Alaska 1971). See also Slough and

Knightly, Other Vices, Other Crimes, 41 Iowa L. Rev. 325

(1956). See also Demmert v. State, 565 P.2d 155 (Alaska 1977)

(other crimes evidence offered to prove intent). Of course,

“other crimes” evidence admissible under Rule 404(b) may be

excluded under Rule 403. Cf., In re F.S., 586 P.2d 607 (Alaska

1978).