Alaska Comm. R. Evid. 404
Character questions arise in two fundamentally different ways.
In most jurisdictions today, the circumstantial use of character is rejected but with important exceptions:
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.
Alaska Comm. R. Evid. 404