Alaska Comm. R. Evid. 103

As amended through September 19, 2024

Rule 103 - Rulings on Evidence

(a)Effect 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)Record 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 insure 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)Hearing 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)Plain 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 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.

Alaska Comm. R. Evid. 103

Amended by SCO 671, effective 6/15/1986.