Legislature(1993 - 1994)

1994-03-09 Senate Journal

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1994-03-09                     Senate Journal                      Page 3112
SB 351                                                                       
SENATE BILL NO. 351 BY THE SENATE RULES COMMITTEE                              
BY REQUEST OF THE GOVERNOR, entitled:                                          
"An Act amending Alaska Rule of Evidence 404,                                 
relating to the admissibility of certain character                             
evidence in court proceedings."                                                

1994-03-09                     Senate Journal                      Page 3113
SB 351                                                                       
was read the first time and referred to the State Affairs and Judiciary        
Zero fiscal notes published today from Department of Administration            
(2), Department of Law, Department of Public Safety.                           
Governor's transmittal letter dated March 9:                                   
Dear Mr. President:                                                            
Under the authority of art. III, sec. 18, of the Alaska Constitution,          
I am transmitting a bill that amends Alaska Rule of Evidence 404               
in several respects to help protect the victims of crimes in this state.       
In far too many cases of sexual assault, domestic violence, and child          
sexual abuse, Alaska's victims are often themselves "put on trial" in          
the course of criminal proceedings.  The emotional trauma that such            
crime victims routinely suffer in the criminal justice system can in           
some cases be nearly as traumatic as the crime itself.                         
Therefore, in order to address these problems and to better protect            
Alaska's citizenry, especially women and children who are frequently           
the victims of these crimes, we have proposed three changes to Rule            
of Evidence 404 which are intended to accomplish the following                 
three goals.                                                                   
The first goal is to reduce the number of times a sexual assault               
victim is "put on trial" by authorizing the admission into evidence            
of other sexual assaults or attempted sexual assaults by the defendant         
if the defendant claims that the victim voluntarily "consented" to the         
sexual activity.  When a defendant argues that the victim consented,           
the prosecution should be permitted to stand up for the victim and             
rebut this claim by introducing evidence to the jury that the                  
defendant has sexually assaulted or attempted to sexually assault              
other victims in the past.                                                     

1994-03-09                     Senate Journal                      Page 3114
SB 351                                                                       
The second goal is to similarly protect Alaska's sexually abused               
children.  Rule of Evidence 404(b) was intended to prevent sexual              
predators and other child abusers from manipulating juries by hiding           
their past crimes of this type.  Unfortunately, a confusing and                
unnecessary phrase -- "to show a common scheme or plan" -- has                 
been misinterpreted by several Alaska courts to exclude evidence               
meant to be allowed under the rule.  This bill would fix that                  
problem by simply eliminating this confusing phrase.  Evidence of              
other sexual assaults or sexual abuse by the defendant toward the              
same or another child should be admissible if those acts are similar           
to the offense charged, whether or not the evidence demonstrates a             
"common scheme or plan."  This bill also specifies a 10-year time              
period as being not too remote for the admissibility of evidence of            
prior similar sexual assaults or sexual abuse offenses committed by            
the defendant against children.                                                
The third goal relates to evidence of past violence on the part of the         
defendant.  In cases of domestic violence and other violent crimes,            
the defendant often claims that the victim was the initial aggressor.          
The defendant claims, in essence, that "the victim hit me first" and           
that therefore the victim "had it coming."  Under the existing rule            
of evidence, the defendant is then permitted to introduce all sorts of         
evidence about the victim's past reputation for violence -- and hide         
the fact that the defendant's own past contains an even more violent           
record.  This bill would fix the rule by permitting the prosecution to         
stand up for the victim, and to rebut these claims by introducing              
evidence of the defendant's own past violence.                               
A defendant who claims that the victim was the aggressor should not            
be able to hide behind Rule 404 to keep a jury from learning that              
the defendant has an even greater reputation for violence in the               
community.  The most common relevant character trait of the                    
accused contemplated in this proposed amendment to Rule of                     
Evidence 404(a) is the accuseds reputation for violence or                     

1994-03-09                     Senate Journal                      Page 3115
SB 351                                                                       
The changes proposed in this bill will help level the playing field for        
the state in its efforts to combat crime.  I urge your favorable action        
on this bill.                                                                  
Walter J. Hickel