Alaska Comm. R. Evid. 402
This rule is nothing more than a codification of the common law. The provisions that all relevant evidence is admissible, with certain exceptions, and that evidence which is not relevant is not admissible are "a presupposition involved in the very conception of a rational system of evidence." Thayer, Preliminary Treatise on Evidence 264 (1898). They constitute the foundation upon which the structure of admission and exclusion rests. All states which have codified their evidence law have provided that all relevant evidence, with certain exceptions, is admissible. The model for the rule was Federal Rule of Evidence 402, modified to conform to the Alaska judicial system. Nebraska adopted a similarly modified version of Federal Rule 402, in Nebraska Rule of Evidence 27-402. For similar provisions see also Maine Rule of Evidence 402 and New Mexico Rule of Evidence 20-4-402. Provisions that all relevant evidence is admissible are found in Uniform Rule 7(f), Kansas Code of Civil Procedure § 60-407(b), and New Jersey Evidence Rule 7(f), but the exclusion of evidence which is not relevant is left to implication.
Not all relevant evidence is admissible. The exclusion of relevant evidence may be called for by these rules; by other rules, e.g. the Alaska Rules of Civil and Criminal Procedure; by enactment of the legislature; or by constitutional considerations.
Succeeding rules in the present article, in response to the demands of particular policies, require the exclusion of evidence despite its relevancy. In addition, Article V recognizes a number of privileges; Article VI imposes limitations upon witnesses and the manner of dealing with them; Article VII specifies requirement with respect to opinions and expert testimony; Article VIII excludes hearsay not falling within an exception; Article X spells out the handling of authentication and identification; and Article X restricts the manner of proving the contents of writings and recordings.
The Alaska Rules of Civil and Criminal Procedure in some instances require the exclusion of relevant evidence. For example, Rule 30(b) of the Rules of Civil Procedure, by imposing the requirements of notice and opportunity to consult counsel, limits the use of relevant depositions. Similarly, Rule 15 of the Alaska Rules of Criminal Procedure restricts the use of depositions in criminal cases, even though relevant.
Alaska statutes restricting admissibility of relevant evidence, for example by formulating a privilege or prohibition against disclosure, are not affected by this rule. The rule recognizes the power of the legislature to restrict admissibility. See, e.g., AS 09.25.030 (governing evidence of representations as to credit, skill, or character of third person); AS 12.45.030 (necessary evidence for false pretenses); AS 12.45.085 (notice requirement for evidence of mental defect or disease); AS 28.35.120 (barring use of accident reports).
The rule recognizes but makes no attempt to spell out the constitutional considerations which impose basic limitations upon the admissibility of relevant evidence. Some such limitations have roots in the United States Constitution; see, e.g., evidence obtained in illegal search and seizure, Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081 (1961); incriminating statements obtained without proper warnings, Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966); line-up identifications made after indictment when the accused is without counsel, Gilbert v. California, 388 U.S. 263, 18 L.Ed. 2d 1178 (1967). The Alaska Constitution may be the source of further limitations. Cf. Lanier v. State, Alaska, 486 P.2d 981, at 986 (Alaska 1971):
In defining the scope of constitutional protections which shall be afforded in Alaska courts, we are not limited to the minimum constitutional guarantees as enunciated by the United States Supreme Court. In appropriate circumstances we may more broadly define the rights of the litigants.
Alaska Comm. R. Evid. 402