Alaska Comm. R. Evid. 105
This rule reflects existing common law doctrine by requiring the trial judge, upon request, to instruct the jury as to the proper scope of the evidence where it is admitted for a limited purpose or against only one party. The burden generally is placed on the party who wants the instruction to ask for it. There may be cases where a trial judge should give a limiting instruction sua sponte as failure to do so would lead to reversal on appeal for plain error. See Rule 103(d). One example where the failure to give such an instruction might be likely to produce sufficient injustice to constitute plain error is where the confession of a non-testifying co-defendant is introduced against another co-defendant. Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476 (1968).
The rule does not set forth the criteria for a proper request, but is somewhat analogous to Rule 103 which requires a specific objection or a reasonably definite offer of proof. Counsel should not be permitted to make an unsupported request but should be required to inform the court of the specific concerns and to suggest possible methods of appropriately instructing the jury. Cf., Rule 51, Alaska R. Civ. P.
This rule, while incorporating the text of Federal Rule 105, additionally requires that all reasonable efforts be made to delete references to parties as to whom the evidence is inadmissible. The purpose of this provision is to avoid, wherever possible, prejudice to one party resulting from admission of evidence as to another party. A similar provision is found in the second sentence of the Maine Rules of Evidence 105:
In a criminal case tried to a jury evidence admissible as to one defendant shall not be admitted as to other defendants unless all references to the defendant as to whom it is inadmissible have been effectively deleted.
There is little reason to limit concern for the prejudicial impact of evidence in multi-party cases to criminal trials. Thus, Rule 105, unlike Maine's rule, will apply in all cases tried to a jury.
A reasonable attempt to delete references is all that is required here. If it is not possible to delete all references to parties as to whom the evidence is inadmissible, the court has two options. It may order a severance or a separate trial of one or more of the parties in accordance with Rule 42(b), Alaska R. Civ. P., and Rule 14, Alaska R. Crim. P., if the evidence would be unduly prejudicial despite a limiting instruction and a reasonable attempt to delete references. Or, the court may rely upon Rule 403, which provides the alternative of excluding the evidence altogether if its probative value is substantially outweighed by the danger of unfair prejudice.
Nothing in this Rule is intended to limit the availability of these alternatives where the interest of justice cannot be served by a limiting instruction to the jury.
Alaska Comm. R. Evid. 105