Alaska R. Evid. 404

As amended through March 21, 2024

Rule 404 - Character Evidence Not Admissible to Prove Conduct-Exceptions-Other Crimes

(a)Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

(1)Character of Accused. Evidence of a relevant trait of character offered by an accused, or by the prosecution to rebut the same;

(2)Character of Victim. Evidence of a relevant trait of character of a victim of crime offered by an accused, or by the prosecution to rebut the same, or evidence of a relevant character trait of an accused or of a character trait for peacefulness of the victim offered by the prosecution in a case to rebut evidence that the victim was the first aggressor, subject to the following procedure:

(i) When a party seeks to admit the evidence for any purpose, the party must apply for an order of the court at any time before or during the trial or preliminary hearing.

(ii) The court shall conduct a hearing outside the presence of the jury in order to determine whether the probative value of the evidence is outweighed by the danger of unfair prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim. The hearing may be conducted in camera where there is a danger of unwarranted invasion of the privacy of the victim.

(iii) The court shall order what evidence may be introduced and the nature of the questions which shall be permitted.

(iv) In prosecutions for the crime of sexual assault in any degree and attempt to commit sexual assault in any degree, evidence of the victim's conduct occurring more than one year before the date of the offense charged is presumed to be inadmissible under this rule, in the absence of a persuasive showing to the contrary.

(3)Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

(b)Other Crimes, Wrongs, or Acts.

(1) Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(2) In a prosecution for a crime involving a physical or sexual assault or abuse of a minor, evidence of other acts by the defendant toward the same or another child is admissible if admission of the evidence is not precluded by another rule of evidence and if the prior offenses are similar to the offense charged; and were committed upon persons similar to the prosecuting witness.

(3) In a prosecution for a crime of sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible if the defendant relies on a defense of consent. In a prosecution for a crime of attempt to commit sexual assault in any degree, evidence of other sexual assaults or attempted sexual assaults by the defendant against the same or another person is admissible.

(4) In a prosecution for a crime involving domestic violence or of interfering with a report of a crime involving domestic violence, evidence of other crimes involving domestic violence by the defendant against the same or another person or of interfering with a report of a crime involving domestic violence is admissible. In this paragraph, "domestic violence" and "crime involving domestic violence" have the meanings given in AS 18.66.990.

Alaska R. Evid. 404

Added and amended by SCO 364 effective 8/1/1979; amended by SCO 906 effective nunc pro tunc5/28/1988; by SCO 1092 effective 7/15/1992; by SCO 1153 effective 7/15/1994; by SCO 1204 effective 7/15/1995; by SCO 1293 effective 1/15/1998; and by SCO 1339 effective 6/13/1998; and by SCO 1806 effective 7/1/2013.

Note: SCO 906 incorporated changes in Evidence Rule 404 made by the legislature in ch. 66, §§ 8 and 9, SLA 1988. The legislation added subparagraph (b)(2).

SCO 906 is amended by adding a new paragraph 3 which provides: "3. This order is made for the sole reason that the legislature has mandated the above amendments. If the act mandating these amendments is invalidated by a court of competent jurisdiction, this order shall be considered automatically rescinded." This amendment is effective retroactively to May 28, 1988. Paschall v. State, No. S-4277 (Alaska Dec. 20, 1990) (order granting original application for relief).

Note: Subparagraph (b)(1) was amended by ch. 79, § 4, SLA 1991.

Note to SCO 1204: Ch. 116 § 2 SLA 1994 amended Evidence Rules 404(a)(2) and 404(b) to allow circumstantial use of character evidence and evidence of other crimes in certain criminal cases. Section 8 of this order is adopted for the sole reason that the legislature has mandated the amendments.

Note to SCO 1293: Evidence Rule 404(b)(4) was added by § 22 ch. 63 SLA 1997. Section 5 of this order is adopted for the sole reason that the legislature has mandated the amendment.

Note to SCO 1339: Evidence Rule 404(b)(3) was amended by § 18 ch. 86 SLA 1998 to expand the circumstances when evidence of other sexual assaults or attempted sexual assaults by the defendant will be admitted. Section 3 of this order is adopted for the sole reason that the legislature has mandated the amendment.

Note: Chapter 43, SLA 2013 (SB 22), effective nunc pro tunc to July 1, 2013, amended Evidence Rule 404(b)(2) relating to the admissibility of evidence, in prosecutions of crimes involving physical or sexual assault of a minor, of similar acts by the defendant toward the same or another child. The changes to Evidence Rule 404(b)(2) are adopted for the sole reason that the legislature has mandated the amendments.

Note: Chapter 43, SLA 2013 (SB 22) enacted a number of changes relating to criminal procedure effective nunc pro tunc to July 1, 2013. According to section 45 of the Act, AS 12.45.045(a), as amended by section 16 of the Act, has the effect of amending Alaska Rule of Evidence 404(a) by providing, with some exceptions, that a defendant must request admission of certain evidence about the complaining witness five days before trial and by applying the rule to the conduct of the complaining witness after the alleged offense.

LAW REVIEW COMMENTARIES

"Admissibility of Battered-Spouse-Syndrome Evidence In Alaska," 32 Alaska L. Rev. 153 (2015).