Alaska Comm. R. Evid., art. VIII, VIII
Like Article V, this Article and the Reporter's Comments that accompany it, do not attempt to analyze the history of the hearsay rule and to assess the strengths and weaknesses of hearsay exceptions that have withstood the test of time. This is not to say that Article VIII is nothing more than a codification of common law rules; departures from the common law tradition are frequent, and they are explained in the comments accompanying the relevant sections of the rules. When the common law is carried forward in the rules, only brief mention is made of the rationale for the relevant provisions.
The comments accompanying the rules draw heavily, and at times are verbatim copies, of the Advisory Committee's Notes accompanying the Federal Rules of Evidence. Conspicuously different is the approach of the introductory note on hearsay found in both the Federal and the Alaska Rules. The latter is shorter and assumes greater knowledge on the part of the reader. Practicing lawyers are quite familiar with the rationale for a hearsay rule that begins with the assumption that evidence not tested by cross-examination should be excluded. No matter what the exact words used, problems of sincerity, ambiguity of narration, memory and perception are familiar ones. The Advisory Committee argued that sincerity is "merely . . . an aspect of the three [otherwise] mentioned." To the extent that some courtroom observers believe that perjury is common even in court, problems of perjury outside of court when there is no cross-examination also are likely to exist. Thus, the Advisory Committee was probably wrong. Aside from cross-examination, other reasons for a hearsay rule include the desirability of having evidence taken under oath and the importance of viewing the demeanor of a witness.
The Advisory Committee is undoubtedly correct in noting that the logic of the argument [supporting a hearsay rule] . . . might suggest that no testimony be received unless in full compliance with the three ideal conditions. [Cross-examination, oath, and demeanor.] No one advocates this position. Common sense tells that much evidence which is not given under the three conditions may be inherently superior to much that is. Moreover, when the choice is between evidence which is less than best and no evidence at all, only clear folly would dictate an across-the-board policy of doing without. The problem thus resolves itself into effecting a sensible accommodation between these considerations and the desirability of giving testimony under the ideal conditions.
The solution evolved by the common law has been a general rule excluding hearsay but subject to numerous exceptions under circumstances supposed to furnish guarantees of trustworthiness. Criticisms of this scheme are that it is both bulky and complex, fails to screen good from bad hearsay realistically, and inhibits the growth of the law of evidence.
The Advisory Committee goes on at great length to explain why it decided not to abandon the hearsay rule or to greatly simplify it. The shorter, but similar, answer provided by these rules is that the dangers associated with hearsay are real and continue to plague trial courts today as they have in the past. In addition, arguments for simplification such as those advocated by Weinstein, The Probative Force of Hearsay, 46 Iowa L. Rev. 331 (1961), assume greater faith in trial judges than yet can be justified. Moreover, a more flexible rule might tend to confer an unfair advantage on the government in criminal cases and wealthy parties in civil cases who have ready and efficient means for preparing their hearsay evidence for use at trial. Finally, it is likely that a more flexible rule would tend to produce categories of exceptions for the guidance of trial judges that resemble those that are presented in these rules, which are themselves the out-growth of adjudication and many years of debate. Thus, as the Advisory Committee helpfully observed
[t]he approach to hearsay in these rules is that of the common law, i.e., the general rule excluding hearsay, with exceptions under which evidence is not required to be excluded even though hearsay. The traditional hearsay exceptions are drawn upon for the exceptions, collected under two rules, one dealing with situations where availability of the declarant is regarded as immaterial and the other with those whose unavailability is made a condition to the admission of the hearsay statement. Each of the two rules concludes with a provision for hearsay statements not within one of the specified exceptions "but having comparable [equivalent] circumstantial guarantees of trustworthiness."
In its introductory note, the Advisory Committee wrote at length on the subject of confrontation. Although the United States Supreme Court has recognized that the roots of the confrontation protection and the hearsay rule are common, the constitutional protection and the evidence protection are not identical. Clearly, the confrontation clause speaks to subjects not addressed by the hearsay rule: e.g., the confrontation clause mandates that a defendant be given the opportunity to be present at trial, while the hearsay rule does not address this question; and the confrontation requirement may control the scope of cross-examination and impeachment, while the hearsay rule may not. It is just as clear that the hearsay rule goes beyond minimal confrontation requirements in protecting litigants against unfairness. It is difficult to ascertain precisely what limits the confrontation clause, as applied to the states through the fourteenth amendment, places on states in drafting evidence rules. California v. Green, 399 U.S. 149, 26 L.Ed.2d 489 (1970) and Dutton v. Evans, 400 U.S. 74, 27 L.Ed.2d 213 (1970) indicate that the highwater marks of the confrontation clause --Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923 (1965), Douglas v. Alabama, 380 U.S. 415, 13 L.Ed.2d 934 (1965), Burton v. United States, 389 U.S. 818, 19 L.Ed.2d 70 (1968), and Barber v. Page, 390 U.S. 719, 20 L.Ed. 2d 255 (1968) -- can no longer be read to expand the protection of the confrontation clause in criminal cases to resemble very closely the protection afforded by hearsay rules. There is no need in these rules to answer the question whether some common law hearsay exceptions violate the confrontation requirement, and if so, which ones. It is sufficient to note that the Alaska Rules are drafted with the confrontation requirement in mind and in an attempt to avoid constitutional difficulties. The federal Advisory Committee made a comment that is appropriate here:
Under the earlier cases, the confrontation clause may have been little more than a constitutional embodiment of the hearsay rule, even including traditional exceptions but with some room for expanding them along similar lines. But under the recent cases the impact of the clause clearly extends beyond the confines of the hearsay rule. These considerations have led the Advisory Committee to conclude that a hearsay rule can function usefully as an adjunct to the confrontation right in constitutional areas and independently in non-constitutional areas. In recognition of the separateness of the confrontation clause and the hearsay rule, and to avoid inviting collisions between them or between the hearsay rule and other exclusionary principles, the exceptions set forth in Rules 803 and 804 are stated in terms of exemption from the general exclusionary mandate of the hearsay rule, rather than in positive terms of admissibility.
For a recent case involving an overlap between hearsay and constitutional issues, see Benefield v. State, 559 P.2d 91 (Alaska 1977).
Alaska Comm. R. Evid., art. VIII, VIII