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Rule 412. Evidence Illegally Obtained.
Although illegally obtained evidence may be highly probative, this rule recognizes that such evidence must generally be excluded in order to breathe life into constitutional guarantees and to remove incentives for governmental intrusion into protected areas. While these rules of evidence generally do not incorporate constitutional doctrine, Rule 412 will go beyond what federal constitutional decisions require in protecting the rights of those accused of crime. Thus, for example, in Harris v. New York, 401 U.S. 222, 28 L.Ed.2d 1 (1971), the United States Supreme Court approved the use of statements obtained in violation of Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 695 (1966), for impeachment purposes but not as part of the prosecutor's case-in-chief. Walder v. United States, 347 U.S. 62, 98 L.Ed. 503 (1954), sanctioned the introduction of testimony on illegally seized heroin to rebut the defendant's denial of prior drug possession. Rule 412 would forbid such uses as long as proper objection is made by the defendant. This last proviso is a change from Criminal Rule 26 (g).
This ban on the use of both testimonial and physical evidence for impeachment purposes should not amount to a significant incentive for defendants to commit perjury. The prosecution will still be able to cross-examine the defendant on his claims, if it believes in good faith that the defendant's testimony is false. And, as discussed below, some otherwise inadmissible evidence will still be permitted in perjury prosecutions.
This rule also does not bar the use as impeachment evidence of statements made by a defendant who testifies on a preliminary question of fact as permitted by Rule 104(d). If the preliminary question of fact involves a constitutional question, the argument could be made that a ruling favorable to the defendant renders any statements made during the preliminary hearing "fruit of the poisonous tree" and therefore inadmissible. Cf. Harrison v. United States, 392 U.S. 219 (1968) (use of evidence in case-in-chief). But see People v. Sturgis, 317 N.E.2d 545 (Ill. 1974), cert. denied, 420 U.S. 936, 43 L.Ed.2d 412 (1975). See also United States v. Kahan, 415 U.S. 239, 39 L.Ed.2d 297 (1974); United States v. Mandujano, 425 U.S. 564, 584, 48 L.Ed.2d 212, 277 (1976) (Brennan, J., concurring in the judgment). Where the defendant is successful in suppressing evidence the underlying constitutional right is protected. It seems an extravagant extension of constitutional protection to permit one version of facts from the defendant's mouth to keep evidence from a tribunal and to permit the defendant to offer another version at trial. If the motion to suppress is unsuccessful, there is even less reason to refrain from using the defendant's statements in support of the motion as impeachment evidence. The decision to take the oath and testify is attenuation enough to remove the taint of the initial illegality. The record of the statements, the advice of counsel, and the oath together remove many of the problems associated with Harris v. New York, supra.
In perjury prosecutions, the government's interest in convicting guilty defendants and the extreme difficulty of obtaining reliable evidence warrant controlled use of illegally obtained evidence. Hence Rule 412 contains two narrow exceptions to the blanket prohibition on the use of illegally obtained evidence properly objected to.
The first exception governs statements obtained in violation of the right to warnings under Miranda, if the statement whose admission is sought is relevant to the issue of guilt or innocence and shown to be otherwise voluntary and not coerced. The latter limitation, meant to guarantee the statement's reliability, is derived from Harris v. New York, supra, where the U.S. Supreme Court observed, "Petitioner makes no claim that the statements made to the police were coerced or involuntary." 401 U.S. at 224, 28 L.Ed.2d at 4.
The second exception governs evidence obtained in violation of the fourth amendment and/or its Alaska counterpart, article I, section 14. Again a limitation is imposed: the evidence must be relevant to the issue of guilt or innocence, and must not have been obtained "in substantial violation of rights." This limitation is not imposed to ensure reliability of the evidence, but rather recognizes that judicial integrity requires the exclusion of evidence for all purposes if the police misconduct involved in obtaining it was flagrant. The concept of a "substantial violation of rights" is necessarily flexible, and whether or not such a violation occurred will depend on the facts of each case. The simple reference to "rights" is intended to emphasize that this section has no bearing on the law of standing in search and seizure cases.
ARTICLE V. PRIVILEGES
Article V provides for eight different privileges and recognizes that other privileges may be created by statute or court rule. Because most of the privileges covered by Article V were recognized before the adoption of these Rules, the Reporter's Comments do not attempt to state the rationales for the various privileges and to justify them. Most of the privileges have been debated elsewhere, and the privileges have survived the debate. The Reporter's Comments accompanying the various rules do explain, however, why particular approaches to defining rules were taken and why others were rejected.
Two rules of privilege which are found in several jurisdictions are omitted from these rules. One is the privilege for official information; the other is the privilege previously provided by Rule 43 (h) (7), Alaska R. Civ. P., covering evidence tending to degrade the character of a witness. This Comment explains the omissions.
The Wigmore treatise, 8 Wigmore on Evidence § 2378, at 807-08, (J. McNaughton rev. 1961), states that the best collection of arguments in favor of an official information privilege is as follows (quoting Gellhorn & Byse, Administrative Law Cases and Comments 617-18 (4th ed. 1960):
[The discussion relates to the SEC and summarizes that agency's brief in a federal case]. The documents and testimony relating to intra-agency discussions, communications, memoranda, reports, recommendations, positions taken at staff and Commission level with respect to the investigation and possible injunctive or criminal action are protected for the following reasons: (a) Section 6(b) of the Administrative Procedure Act authorizes restrictions upon the delivery of data such as that involved here even to the person who furnished it, and, as stated in the Attorney General's manual on the Administrative Procedure Act in connection with section 3(c) of the Act, "intra-agency memoranda and reports prepared by agency employees for use within the agency are not official records since they merely reflect the research and analysis preliminary to official agency action." (b) The action or non-action of the SEC and other federal agencies with respect to an investigative matter is not subject to direct court review. A fortiori, it cannot be reviewed in a purely private action to which the Commission is not a party through subpoenas and other demands designed to "flush out" the internal deliberations of the Commission concerning an investigative matter. (c) The investigative functions of the Commission are like those of a grand jury and similarly immune from public scrutiny. (d) The "work product" doctrine of Hickman v. Taylor, 329 U.S. 495 (1947), makes these matters immune from compulsory disclosure. (e) The decisional process of the Commission is immune from judicial probing0.0.0.0(f) Much of the information sought is covered by the attorney client privilege. (g) Compulsory disclosure of the information sought would do violence to the philosophy underlying the tripartite nature of our government. The executive branch traditionally has declined to hand over confidential files to other branches when it has been considered contrary to the public interest to do so. (h) Investigative files often contain hearsay, gossip, and other remote information from which the government hopes to develop leads. Public disclosure of such trivia and possible falsehoods might work grave injury and injustice to those involved.
Assuming that similar arguments would be made by state officials and by most government officers and agencies in favor of a privilege, the fact is that these arguments are not convincing. The first argument is that intra-agency memoranda and reports are not official records. This begs the question. Such reports and memoranda may not be legally binding on third persons, but they may be admissible, if relevant, against the agency in litigation. The important thing is that they will rarely be relevant and thus will not often be disclosed under governing discovery rules. The second argument is that since courts cannot control non-action, the court cannot review non-public aspects of agency work. But if non-public aspects of agency work are relevant to a lawsuit, the court is not reviewing the action of the agency under an Administrative Procedure Act; it is deciding a lawsuit which is something that lies within the powers granted the state judiciary under the Alaska Constitution. The third argument is that investigative functions of agencies are like those of a grand jury and are therefore immune from scrutiny. Once again the question is begged and the analogy inappropriate since grand jury proceedings are disclosed under some circumstances. The work product argument fails because the "work product" doctrine can exist in the absence of an absolute privilege. Another argument, that the decisional process of an agency is immune from judicial probing, states a conclusion, not an argument. The opposite conclusion is available also. That much of the information is covered by the attorney-client privilege suggests that another privilege may not be necessary. The next to the last argument is that a government based on separation of powers requires that the judiciary stay its hand when asked to intervene into the internal affairs of an agency. But checks and balances are as real as separation of powers. In fact, the ultimate judicial check of review over agency matters suggests that the agency is not beyond the reach of the courts. Finally, the notion that public disclosure of trivia and possible falsehoods might work grave injury and injustice to members of the community assumes that courts are without power to protect against oppressive disclosure, something which is not true.
It is difficult to see why a government agency should be given a greater privilege than a corporation is given to protect its secrets. Yet, the Model Code of Evidence rule 228 and Uniform Rule 34 (1953) recognized a privilege for official information. Proposed Federal Rule 509 also recognized such a privilege, as do Rule 508, Maine Rules of Evidence (West 1978); Nebraska Rule 509; N.J. Stat. Ann. 2A: 84A-34 (West 1976); Rule 34, Utah Rules of Evidence (1977); and V.I. Code Ann. tit. 5, § 862 (1967) (Virgin Islands). In refusing to recognize an official information privilege, Alaska rules take the view that in the rare case when internal government documents would be relevant to litigation, they should be disclosed. Protective orders under the discovery rules are available to mitigate any unfortunate consequences that might flow from this position. Also, the legislature remains free to enact statutes to protect certain information that may be especially sensitive.
Nothing in these Rules speaks to the various constitutional issues that may arise when a privilege is claimed. For example, these rules do not attempt to decide whether the doctrine of separation of powers implies a constitutionally based executive privilege. See generally United States v. Nixon, 418 U.S. 683, 41 L. Ed. 2d 1039 (1974). Nor do these rules discuss constitutionally based claims of legislative privilege. See generally Gravel v. United States, 408 U.S. 606, 33 L. Ed. 2d 583 (1972).
The other privilege that is omitted by these rules is the one that would allow a witness to refuse to disclose in any action "any matter that will have a direct tendency to degrade his character" unless the exercise of the privilege would prevent a party from obtaining information relating to a fact in issue or to a fact from which the fact in issue would be presumed. Since Rule 404 is designed to protect against certain embarrassing disclosures, and Rule 608 bars any inquiry into prior bad acts not the subject of a criminal conviction used for impeachment purposes, no privilege is necessary under these Rules. Were it not for these two rules, it might be necessary to add some sort of a privilege to make it clear that the court is to balance the impact of questioning on a witness against the need of a party for evidence, as well as to balance the prejudicial effect of certain evidence on one party against the beneficial effect on another party. While there may be embarrassing details not covered by Rules 404 and 608, they do not seem to present a sufficient danger to warrant the creation of a privilege.
The following Rule 501 speaks of statutory privileges. Whether any particular privilege is more substantive or procedural need not be decided. The purposes served by most privileges are such that they can be equally well served by the creation of substantive rights by the legislature or procedural rights by the courts. There may be cases in which a determination of their character- i.e., procedural or substantive - will have to be made in order to decide whether article IV, section 15 of the Alaska Constitution has been satisfied (requiring a two-thirds vote of the legislature to supersede rules of practice and procedure promulgated by the Supreme Court). But such cases may never arise and it would be premature to comment upon them in advance.
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Last Modified 7/14/1999