Alaska Comm. R. Evid. 104
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).
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.
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.
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.
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 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 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).
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 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.
Alaska Comm. R. Evid. 104