On a Collision Course: Pure Propensity Evidence and Due Process in Alaska

• Jurisdiction: Alaska,United States
• Publication year: 2001
• Citation: Vol. 18

§ 18 Alaska L. Rev. 177. ON A COLLISION COURSE: PURE PROPENSITY EVIDENCE AND DUE PROCESS IN ALASKA

Alaska Law Review
Volume 18
Cited: 18 Alaska L. Rev. 177

ON A COLLISION COURSE: PURE PROPENSITY EVIDENCE AND DUE PROCESS IN ALASKA

DREW D. DROPKIN, JAMES H. MCCOMAS ^{[*] [**]}

I. INTRODUCTION

II. ALASKA RULE OF EVIDENCE 404 AND THE FOUR PROPENSITY EXCEPTIONS

III. PURE PROPENSITY EVIDENCE THREATENS FEDERAL DUE PROCESS

A. The Historical Aversion to Pure Propensity Evidence

B. The Threat to Federal Due Process

C. A Valuable Comparison: Dowling v. United States, Non-Propensity Purpose, and Three Due Process Safeguards

IV. THREE CASES, BUT ONE DEFECTIVE RATIONALE: THE ALLEN-WARDLOW-FUZZARD TRILOGY

V. THE INSUFFICIENCY OF ARE 403 BALANCING OF PURE PROPENSITY EVIDENCE

VI. THE ALASKA DUE PROCESS CLAUSE PROHIBITS ADMISSION OF PURE PROPENSITY EVIDENCE

VII. CONCLUSION

FOOTNOTES

This Article examines the four propensity evidence provisions embodied in Alaska Rule of Evidence 404 and the threat they pose to the constitutional due process rights of defendants. Rule 404 permits the state, in certain criminal cases, to introduce evidence of a defendant's criminal propensity to show that the defendant acted in accordance with this propensity. The authors argue that this contravenes a deeply rooted principle of American criminal justice disallowing such propensity evidence, and they are critical of Alaska Court of Appeals decisions upholding the constitutionality of three of the propensity evidence exceptions. The Article analyzes the court's reliance on judicial balancing as a safeguard against due process threats and discusses why this approach to propensity evidence is flawed.

I. INTRODUCTION

The Alaska legislature is treading on thin ice, and the Alaska Court of Appeals has joined its legislators in the middle of a perilous constitutional pond. Seven years ago, the Alaska legislature [*pg 178] initiated a concerted attack upon the well-accepted principle that "other-misconduct" evidence, ^[1] which is offered to prove an accused's bad character or criminal propensity, ^[2] is inadmissible in a criminal trial. By enacting the propensity provisions ^[3] embodied in Alaska Rule of Evidence ("ARE") 404, ^[4] the legislature has repudiated this deeply-rooted principle of American criminal justice and permitted the state to introduce evidence of a defendant's criminal propensity in many criminal cases. ^[5] Three of the four "pure" propensity provisions have survived due process challenges in the Alaska Court of Appeals since 1997, ^[6] and the court of appeals has yet to provide a precedential opinion evaluating the constitutionality of the fourth. ^[7] The Alaska Supreme Court has not yet ruled on the constitutionality of the propensity provisions. ^[8] However, the court made clear that it incorporated the provisions into ARE 404 solely because legislation required it. ^[9]

[*pg 179]

Alaska's propensity provisions vest prosecutors with virtually unfettered power to impugn the character of a criminal defendant in cases of alleged aggressive behavior, child abuse, sexual assault, and domestic violence. Subject only to minimal limitations, ^[10] these exceptions openly invite the state to tread on the constitutional due process rights of defendants in contravention of several bedrock principles of Anglo-American jurisprudence. The Alaska Court of Appeals' inability to appreciate the threat that pure propensity evidence poses to due process bestows upon the Alaska Supreme Court the responsibility to declare the ARE 404 exceptions unconstitutional. This Article suggests that the supreme court will not hesitate to do so.

The Article proceeds in six parts. Part II introduces Alaska's four pure propensity exceptions -- the first aggressor exception, the child abuse exception, the sexual assault exception, and the domestic violence exception -- and places these exceptions in the context of the evidence rules of other states and the federal courts. Part III traces the historical treatment of propensity evidence and identifies three fundamental principles of federal due process -- the presumption of innocence, the "beyond a reasonable doubt" standard of proof, and the prohibition against status crimes -- that are endangered by the admission of propensity evidence. Relying on the United States Supreme Court's decision in Dowling v. United States, ^[11] this section also identifies three procedural safeguards that protect a defendant's federal due process rights when other-misconduct evidence is admitted for non-propensity purposes. Part IV analyzes the Alaska Court of Appeals' approach to Alaska's pure propensity provisions and highlights the court's heavy reliance upon one procedural safeguard, judicial balancing under ARE 403, to protect the defendant's due process rights. Part V isolates the major flaw in the intermediate court's reasoning. Although the court relies entirely on the "protection" afforded by judicial balancing under ARE 403, this safeguard is meaningless where other-misconduct evidence is employed for a pure propensity purpose. The propensity provisions disable meaningful ARE 403 balancing by redefining unfair prejudice as legitimate "probative" value. By putting both interests on the same side of the scale, nothing is left to balance. Recognizing that propensity provisions pose a clear [*pg 180] threat to federal due process, Part VI suggests that the admission of such evidence for a propensity purpose independently violates the requirements of due process in Alaska.

In finding Alaska's propensity provisions unconstitutional, this Article does not suggest that the traditional use of other-misconduct evidence for non-propensity purposes is unconstitutional. Furthermore, as Part VII suggests, the unconstitutionality of these exceptions will not necessarily bar much of the evidence from being introduced at trial. On the contrary, some such evidence will be admitted under ARE 404(b)(1) for non-propensity purposes. In admitting this evidence for non-propensity purposes, Alaska courts will furnish defendants with the benefits of traditional procedural safeguards and will strike the appropriate balance between the permissible introduction of the evidence and the constitutional requirements of due process.

II. ALASKA RULE OF EVIDENCE 404 AND THE FOUR PROPENSITY EXCEPTIONS

ARE 404 ^[12] addresses the admissibility of evidence of a person's character or a trait of character. ^[13] The Alaska Evidence Rules generally track the structure of the Federal Rules of Evidence ("FRE"). ^[14] ARE 404, like its federal counterpart, dedicates a section to "Character Evidence Generally" ^[15] and a section to "Other Crimes, Wrongs, or Acts." ^[16] Alaska's propensity exceptions are ensconced in these two sections of ARE 404.

ARE 404(a) generally prohibits the admission of evidence of an individual's character or a trait of that individual's character for the purpose of proving that the individual acted in conformity with [*pg 181] such character during the alleged crime. ^[17] However, the rule embodies three exceptions ^[18] that have been widely accepted in other jurisdictions ^[19] : (1) evidence of the defendant's character may be admitted, by the defendant and the prosecution, if the evidence is initially offered by the defendant ^[20] ; (2) evidence of the victim's character may be admitted, by the defendant and the prosecution, if the evidence is initially offered by the defendant ^[21] ; and (3) evidence of the character of a witness may be admitted as governed by Alaska Rules of Evidence 607-609. ^[22]

At common law, the defendant in an assault or homicide case was entitled to introduce evidence of the victim's violent character, which served as circumstantial evidence that the victim may have been the initial aggressor during the incident. ^[23] The government was subsequently entitled to rebut the defendant's evidence by introducing contrary evidence evincing the peacefulness of the victim. ^[24] If the defendant introduced evidence of the victim's violent character, the prosecution was not permitted to introduce evidence of the defendant's violent character. Conceptually, the character of [*pg 182] the victim and the character of the defendant were not interrelated. ^[25]

Alaska, however, has broadened the common law admission of character evidence in its ARE 404(a)(2) first aggressor exception. ^[26] In 1980, the Alaska Supreme Court concluded in Keith v. State, ^[27] in accordance with the common law rule, that the character of the victim and the character of the defendant were not interrelated, and therefore the prosecution could not introduce evidence of the defendant's character after the defendant offers evidence of the aggressive propensity of the victim. ^[28] The legislature purported to vitiate the Keith holding by amending ARE 404(a)(2) ^[29] in 1994. Under the amended rule, when the defendant asserts that the victim was the first aggressor, for example by claiming self-defense, the state may introduce evidence of the defendant's violent disposition in addition to evidence of the victim's peacefulness. ^[30]

[*pg 183]

Alaska's first aggressor exception deviates from the first aggressor exception in the Federal Rules of Evidence in one critical respect. Under FRE 404(a)(2), if the accused asserts that the victim was the first aggressor (i.e., the accused claims...