| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska v. The Estate of Harry Powell (1/24/2025) sp-7740
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Supreme Court No. S-18076
Petitioner, ) Court of Appeals No. A-13326
)
v. ) Superior Court No. 3AN-17-07280 CR
)
The Estate of HARRY POWELL, ) O P I N I O N
)
Respondent. ) No. 7740 - January 24, 2025
)
Petition for Hearing from the Court of Appeals of the State
of Alaska, on appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Catherine M.
Easter, Judge.
Appearances: Hazel C. Blum and Diane L. Wendlandt,
Assistant Attorneys General, Anchorage, and Treg R.
Taylor, Attorney General, Juneau, for Petitioner. Claire De
Witte, Assistant Public Defender, and Samantha Cherot,
Public Defender, Anchorage, for Respondent.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
HENDERSON, Justice.
PATE, Justice, with whom CARNEY, Justice, joins,
dissenting.
INTRODUCTION
At issue in this matter is whether certain recorded out-of-court statements
of child victims of crime, contemplated by Alaska Rule of Evidence 801(d)(3), may be
----------------------- Page 2-----------------------
admitted as evidence at grand jury proceedings. The respondent argues that such
recorded out-of-court statements are inadmissible hearsay and may not be admitted at
a grand jury proceeding because it typically is not possible to meet all of Evidence Rule
801(d)(3)'s foundational requirements at that stage of the case. The State disagrees,
contending that the rule governing admissibility of evidence before the grand jury,
Alaska Rule of Criminal Procedure 6(s), specifically anticipates that any evidence that
would be admissible at trial may be admitted during grand jury proceedings. The State
argues that so long as it would be able to meet the foundational requirements of
Evidence Rule 801(d)(3) at trial, Criminal Rule 6(s) allows for admission of the
recorded out-of-court statements at issue before the grand jury. In light of the plain text
and structure of Criminal Rule 6(s), as well as the legislature's purpose in promulgating
Evidence Rule 801(d)(3), we agree with the State and conclude that so long as the State
would be able to meet the requirements of Evidence Rule 801(d)(3) at the time of trial,
the recorded out-of-court statements of minor crime victims addressed by that rule may
be admitted before the grand jury. We reverse the court of appeals' decision otherwise.
FACTS AND PROCEEDINGS
A. The Indictment And Motion To Dismiss
In 2018 a grand jury indicted Harry Powell, now deceased, on one count
of second-degree sexual abuse of a minor1 and one count of second-degree misconduct
2 3
involving a controlled substance, both involving fourteen-year-old A.S. Powell was
also indicted on one count of second-degree sexual abuse of a minor involving fifteen-
year-old A.O.
1 AS 11.41.436(a)(1).
2 Former AS 11.71.030(a)(2) (2018).
3 We use initials to protect the privacy of the victims.
- 2 - 7740
----------------------- Page 3-----------------------
During the grand jury proceeding, the State presented video recordings of
interviews with A.S. and A.O. that had been conducted at a child advocacy center.4 The
detectives who had conducted the interviews testified before the grand jury and
described the process and setting, including techniques used and safeguards taken to
limit influence on the children's descriptions of relevant events. One detective
described how child forensic interviewing training focuses on "asking open ended
questions [and] avoiding [questions] that[] . . . elicit a yes or no or true or false kind of
answer." The other detective described the room where the interviews took place, and
both detectives confirmed the victims' identities. The State played the video recording
of A.O.'s interview, in which she did not disclose sexual abuse by Powell. The State
then played the video recording of A.S.'s interview, in which A.S. described sexual
abuse by, and drug use with, Powell. The prosecutor then instructed the grand jurors
that if they felt that they "need[ed] to hear directly" from A.S. and A.O., "or that it
would be helpful in reaching a decision to have either of the girls come in and testify in
front of [the jury]," the prosecutor would "make it happen." The State did not call A.S.
or A.O. as witnesses. The State then called a third-party eyewitness who was able to
describe the sexual abuse of A.O. by Powell.
Powell subsequently moved to dismiss the indictment, arguing that the
video recordings presented by the State constituted inadmissible hearsay.5 In particular
Powell argued that the recordings did not meet the requirements necessary to constitute
4 A "child advocacy center" is a child-focused facility "that includes
representatives from law enforcement, child protection, criminal prosecution, victim
advocacy, and the medical and mental health fields who collaborate and assist in
investigating allegations of sexual or other abuse and neglect of children."
AS 47.17.033(l).
5 "Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted." Alaska R. Evid. 801(c).
- 3 - 7740
----------------------- Page 4-----------------------
non-hearsay under Evidence Rule 801(d)(3) or to amount to a hearsay exception under
Criminal Rule 6(s).6 Related to Evidence Rule 801(d)(3), Powell contended that the
videos could not meet three of the Rule's requirements at the grand jury stage: 1) that
the victim must be available for cross-examination under subsection (d)(3)(B); 2) that
the trial judge must have reviewed the "entirety of the circumstances surrounding the
victim interview" under subsection (d)(3)(F); and 3) that the trial judge must have
determined that "the interests of justice are best served" by admitting the recording
under subsection (d)(3)(H).7 Without the recorded interviews, Powell argued there was
insufficient evidence to support the grand jury's indictment and that it must be
dismissed.
The superior court granted Powell's motion to dismiss the counts of the
indictment involving A.S. The court agreed with Powell "that the foundation required
6 Effective December 2022, Supreme Court Order 1993 added a subsection
to Criminal Rule 6. Alaska Supreme Court Order No. 1993 (Nov. 29, 2022). This
change resulted in a re-lettering of the proceeding subsections, so Criminal Rule 6(r)
was renamed 6(s) during the pendency of this litigation. Id. The amendment did not
change the substance of former Rule 6(r); we refer to it as 6(s) in this opinion to
minimize future confusion. See id. We also note that during the pendency of this
litigation the legislature passed, and the Governor signed into law, a bill amending Rule
6(s). See Ch. 11, §§ 1, 61, SLA 2024. We decide this appeal based on the text of Rule
6(s) as it existed in 2018 because the recent law was not in effect during the grand jury
proceeding here. See id. §§ 66(f), 69 (stating that amended rule "applies to indictments
occurring on or after" effective date of January 1, 2025). We do not address the effect
that the recent change in the rule may have on grand jury proceedings.
7 See Alaska R. Evid. 801(d)(3)(B), (F), (H); Augustine v. State , 355 P.3d
573, 582-83 (Alaska App. 2015) ("[T]wo of the criteria-(d)(3)(F) and (d)(3)(H)-
explicitly require the trial judge to exercise judgment after evaluating the entirety of the
circumstances surrounding the victim's statement."). The indictment at issue here is
the superseding indictment, and therefore Powell had the opportunity to view the video
recording before the second grand jury proceeding. Powell did not challenge the
admission of the evidence under Rule 801(d)(3)(G), which requires that defense counsel
be provided an opportunity to view the video before admission. Alaska R. Evid.
801(d)(3)(G).
- 4 - 7740
----------------------- Page 5-----------------------
by Rule 801(d)(3)(B) was not established" at the time of the grand jury proceedings. It
held that because cross-examination is not possible at the grand jury phase of the case,
and the rule "contemplates a cross-examination contemporaneous to the introduction of
the recording," the foundational elements for admission of the video recorded
statements could not be met at grand jury. It did not reach Powell's arguments with
respect to subsections (F) and (H) because it found that the subsection (B) requirement
had not been met. Without the video recordings it concluded that there was insufficient
evidence to sustain the indictment against Powell as to charges involving A.S.
Regarding charges related to A.O., it held that the eyewitness testimony presented to
the grand jury about A.O. was sufficient to sustain the indictment.
B. Court Of Appeals Proceedings And Appeal
The State appealed the dismissal of the indictment. While the appeal was
pending, Powell contracted COVID-19 and died in pretrial detention. The parties
agreed that although the matter was moot, it should nonetheless proceed and be decided
under the public interest exception to the mootness doctrine. The court of appeals
8
agreed.
The court of appeals affirmed the superior court's dismissal of the two
counts of the indictment involving A.S.9 The court reasoned that because the
foundational requirements of Evidence Rule 801(d)(3) cannot be met at the grand jury
stage and the legislative history did not indicate that the legislature considered whether
these statements would be admissible before the grand jury, video-recorded statements
cannot be admitted as non-hearsay under Evidence Rule 801(d)(3) at grand jury
proceedings.10 The court also considered a decision by the Nevada Supreme Court,
8 State v. Powell, 487 P.3d 609, 610 n.1 (Alaska App. 2021) (citing Hayes
v. Charney, 693 P.2d 831, 834 (Alaska 1985)).
9 Id. at 616.
10 Id. at 614-15.
- 5 - 7740
----------------------- Page 6-----------------------
Rugamas v. Eighth Judicial District Court,11 in which that court held that a similar
12
hearsay exception did not apply at grand jury proceedings in Nevada.
The State petitioned for our hearing of the court of appeals' decision, and
we granted the petition in early 2022. Given that Evidence Rule 801(d)(3) was
originally promulgated by the legislature, and to account for the possibility that there
could be legislative action on the issue during the 2022 legislative term, we stayed our
review of the case until the end of the legislative session. The legislature ultimately
took no action on this issue during the 2022 term.13 The parties therefore proceeded
with briefing, and we heard argument in June 2023. The legislature subsequently
amended Criminal Rule 6(s) in 2024; however, our decision in this case addresses the
14
rule as it existed at the time of Powell's indictment in 2018.
STANDARD OF REVIEW
We review questions of law, including the interpretation of court rules, de
novo.15 We apply our "independent judgment, adopting the 'most persuasive rule of
16
law in light of precedent, reason, and policy.' "
11 305 P.3d 887 (Nev. 2013).
12 Powell, 487 P.3d at 615-16 (citing Rugamas, 305 P.3d at 890-95).
13 The legislature considered a somewhat related, but distinct, bill during the
2022 legislative term, but that bill did not advance out of committee at the time. Senate
Bill (S.B.) 188, 32d Leg., 2d Sess. (2022). As discussed above, the legislature amended
Rule 6(s) in 2024, but this amendment was not in effect during the grand jury
proceedings in this case and we do not address any impact of the amendment on future
grand jury proceedings. See discussion supra note 6.
14 See supra, notes 6 and 13.
15 Cora G. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs.,
461 P.3d 1265, 1276 (Alaska 2020).
16 Lingley v. Alaska Airlines, Inc. , 373 P.3d 506, 512 (Alaska 2016) (quoting
Donahue v. Ledgends, Inc., 331 P.3d 342, 346 (Alaska 2014)).
- 6 - 7740
----------------------- Page 7-----------------------
DISCUSSION
A. Under Criminal Rule 6(s)(1), Prosecutors May Present Evidence To
The Grand Jury That Would Later Be Admissible At Trial.
The admissibility of evidence before the grand jury17 is governed by
Alaska Criminal Rule 6(s). Under Criminal Rule 6(s)(1), evidence "which would be
legally admissible at trial shall be admissible before the grand jury." The rule generally
excludes the presentation of non-admissible hearsay to the grand jury, "absent
18
compelling justification" or in the event it meets one of three limited exceptions.
Alaska Evidence Rule 801(d)(3) establishes when a recorded statement by
a child victim of crime is not hearsay and is admissible at trial. Such a recorded
statement must meet eight foundational requirements in order to be deemed admissible
non-hearsay.19 These include the court's consideration and decision that the recording
17 The grand jury determines whether to indict a defendant on felony
charges. Alaska Const. art. I, § 8. The grand jury functions both as "an investigatory
and accusatory body," and to protect "the innocent against oppression and unjust
prosecution." Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007) (first citing United
States v. Calandra, 414 U.S. 338, 343-44 (1974); and then quoting Frink v. State, 597
P.2d 154, 165 (Alaska 1979)).
18 Alaska R. Crim. P. 6(s)(1).
19 Alaska R. Evid. 801(d)(3)(A)-(H) ("(A) [T]he recording was made before
the proceeding; (B) the victim is available for cross-examination; (C) the prosecutor
and any attorney representing the defendant were not present when the statement was
taken; (D) the recording is on videotape or other format that records both the visual and
aural components of the statement; (E) each person who participated in the taking of
the statement is identified on the recording; (F) the taking of the statement as a whole
was conducted in a manner that would avoid undue influence of the victim; (G) the
defense has been provided a reasonable opportunity to view the recording before the
proceeding; and (H) the court has had an opportunity to view the recording and
determine that it is sufficiently reliable and trustworthy and that the interests of justice
are best served by admitting the recording into evidence.").
- 7 - 7740
----------------------- Page 8-----------------------
"is sufficiently reliable and trustworthy and that the interests of justice are best served
by admitting the recording into evidence."20
Powell advocates, and the court of appeals held, that the recordings were
inadmissible because (1) Evidence Rule 801(d)(3) requires findings and often a hearing
before the involved video-recorded statements can be admitted at trial, and (2) there is
no indication that the legislature intended that these video recordings would be admitted
at the grand jury stage.21 But this approach is inconsistent with Criminal Rule 6(s)'s
general provision regarding the admissibility of evidence at grand jury.
When interpreting a procedural rule, we proceed as if we were interpreting
a statute.22 We start with the text and its plain meaning.23 We also consider the rule's
purpose and relevant legislative history, if any, "in an attempt to 'give effect to the
legislature's intent, with due regard for the meaning the . . . language conveys to
others.' "24 We apply a "sliding-scale approach" to interpreting the language and
resolving any ambiguities: "[T]he plainer the . . . language is, the more convincing the
evidence of contrary legislative purpose or intent must be" in order to carry weight in
discerning the meaning of a statute or rule.25 We construe the Alaska Rules of Criminal
20 Id. 801(d)(3)(H).
21 See State v. Powell, 487 P.3d 609, 614-16 (Alaska App. 2021).
22 See Off. of Pub. Advocacy v. Super. Ct., 462 P.3d 1000, 1005 (Alaska
2020) (quoting Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Com. , 414
P.3d 630, 634 (Alaska 2018)).
23 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
2019) (citing Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012)).
24 Id. (quoting Alyeska Pipeline Serv. Co. v. DeShong , 77 P.3d 1227, 1234
(Alaska 2003)).
25 Id. (quoting State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016)).
- 8 - 7740
----------------------- Page 9-----------------------
Procedure "to secure simplicity in procedure, fairness in administration and the
elimination of unjustifiable expenses and delay."26
We conclude that Criminal Rule 6(s) permits the presentation of evidence
to the grand jury if the requirements for admissibility would be met at a future trial. In
so holding, we note that the rule provides for a forward-looking assessment. It does not
require the impossible: that for evidence for which admissibility hinges on affirmative
findings by the court, those procedural steps must be met at the more preliminary grand
jury stage. This is apparent from the plain meaning of the Rule's text when read in the
context of grand jury proceedings. This interpretation is further supported by the
purpose of Criminal Rule 6(s), as evidenced by the case law that preceded its
promulgation. We recognize the importance of the grand jury as a key constitutional
safeguard for the accused in Alaska, and emphasize that our adherence to the plain
language of Criminal Rule 6(s), conditioning the admissibility of evidence before the
grand jury on its admissibility at a future trial, is consistent with that role of the grand
jury.
1. In the context of grand jury proceedings, the plain language of
Criminal Rule 6(s) sets a prospective standard for determining
admissibility.
Criminal Rule 6(s) defines what evidence will be admissible before the
grand jury: "Evidence which would be legally admissible at trial shall be admissible
before the grand jury." This standard is conditional and forward-looking.27 In other
26 Alaska R. Crim. P. 2.
27 We are not persuaded by the distinction between "would" and "will" that
Powell argues changes the meaning of the first sentence. "Would" imposes a future
condition irrespective of present or past tense. Would, MERRIAM WEBSTER 'S
COLLEGIATE DICTIONARY, 10th Ed. (1999) (describing various conditional meanings
of "would" when used in auxiliary function). We also note the dissenting opinion
compares the use of "would" in Rule 6(s) and the Administrative Procedure Act. We
- 9 - 7740
----------------------- Page 10-----------------------
words, the evidence as presented to the grand jury, if presented at trial, would meet
foundational requirements.28 This implicitly requires the prosecutor to make a good
faith, reasonable judgment that the evidence would be admissible as of the time of trial.
This interpretation makes sense when we consider the context of a grand
jury proceeding. Proceedings before the grand jury are secret and ex parte : only the
jurors, prosecutors, clerk, witness es under examination, a law enforcement officer, and
an interpreter may be present for the proceeding.29 No judge is present to resolve
evidentiary disputes, nor is a defense attorney present to object to evidence.30 And a
31
defendant does not "have the right to confront the state's witnesses at the grand jury."
Absent unusual circumstances, then, the evidence before the grand jury has not
previously been deemed admissible by any authority. Without a judge and adversarial
presentation, there is no authority to determine whether the prosecution has met the
standards for admissibility during the grand jury proceeding.
For each piece of evidence, then, the grand jury relies largely on the
professional judgment of the prosecutor that the evidence would be admissible at trial.
The structure of the proceeding includes a substantial role for the prosecutor: to prepare
indictments, present evidence, and advise the grand jury of its legal duties, including
conclude this comparison is not persuasive because, as we discuss later in this decision,
the grand jury context necessarily contemplates a future trial, while an administrative
proceeding does not necessarily contemplate a future trial in the same manner. See
discussion infra Section IV.A.1; AS 44.62.560.
28 See Wassillie v. State, 411 P.3d 595, 603-04 (Alaska 2018) (discussing
reliability concerns of police reports as basis for inadmissibility under Alaska Evidence
Rule 803(8) hearsay exception).
29 Alaska R. Crim. P. 6(l).
30 Id.
31 State v. Nollner, 749 P.2d 905, 908 (Alaska App. 1988).
- 10 - 7740
----------------------- Page 11-----------------------
applicable laws.32 The presentation of evidence must be "reasonably complete and
fair," including exculpatory evidence.33 As a legal advisor, the prosecutor must instruct
the grand jury on the evidence rules, so the grand jury can evaluate the legal sufficiency
of the evidence.34 But overall, it is the prosecutor's good faith, reasonable judgment
that the evidence is admissible, in light of the prosecutor's duty to serve the interests of
35
justice, that guides what evidence is presented to the grand jury.
This commonsense interpretation of the plain language of Criminal
Rule 6(s) also reflects the prospective nature of a grand jury proceeding. The grand
jury's standard for indictment is conditional and forward-looking: if "all the evidence
taken together, if unexplained or uncontradicted, would warrant a conviction of the
defendant," then the grand jury must indict.36 The decision must be based on evidence
that "rationally establish[es] the facts" and would "persuade reasonable minded
persons" of probable cause of guilt.37 The grand jury's primary function, then, is to
evaluate the sufficiency of the prosecutor's case, not to find facts or make final
determinations.
32 Alaska R. Crim. P. 6(i).
33 Zurlo v. State, 506 P.3d 777, 782-83 (Alaska App. 2022) (describing
requirements of prosecutor's presentation to grand jury and defining exculpatory
evidence as evidence that "tends, in and of itself, to negate the defendant's guilt" (first
citing Williams v. State, 418 P.3d 870, 877-78 (Alaska App. 2018); and then quoting
Preston v. State, 615 P.2d 594, 603 (Alaska 1980))).
34 Alaska R. Crim. P. 6(i).
35 See Frink v. State, 597 P.2d 154, 165-66 (Alaska 1979) ("As a
representative of the state, a district attorney should seek justice, not simply indictment
or conviction.").
36 Alaska R. Crim P. 6(r).
37 State v. Parks, 437 P.2d 642, 643-44 (Alaska 1968) (first quoting United
States v. Costello, 221 F.2d 668, 677 (2d Cir. 1955); and then quoting State v. Shelton,
368 P.2d 817, 818-19 (Alaska 1962)).
- 11 - 7740
----------------------- Page 12-----------------------
Powell argues for a different conclusion, namely that all requirements for
admissibility "must be met when the state introduces the evidence at the grand jury
proceeding." In support of this argument, Powell points to the remainder of
Criminal Rule 6(s) to argue that the State's interpretation of the Rule's initial direction
is inconsistent with the Rule's subsequent provision for certain hearsay exceptions
specific to grand jury. But this interpretation fails to consider the structure and plain
language of the Rule.38 The provisions of Criminal Rule 6(s) that Powell points to
allow certain hearsay evidence that would otherwise be inadmissible at trial. More
specifically, the rule allows four instances of hearsay that would be inadmissible at trial
to be admitted before the grand jury, providing three specific exceptions and one more
general exception in cases where there is a "compelling justification" for introduction
of the evidence.39 On the other hand, the first sentence of Criminal Rule 6(s), broadly
allowing evidence that would be admissible at trial, "encompasses hearsay evidence
which would be admissible pursuant to one of the recognized exceptions to the hearsay
40
rule."
Powell also points to Criminal Rule 6(s)(2), which allows hearsay
evidence to be admitted to the grand jury in sexual assault cases when the victim is a
38 While Powell points to the canon of construction on whole text, we decline
to apply this canon because the plain meaning of Criminal Rule 6(s) is clear. See West
v. Muni. of Anchorage, 174 P.3d 224, 228-29 (2007).
39 Alaska R. Crim. P. 6(s)(1), (2), (3), (6).
40 Galauska v. State, 527 P.2d 459, 464 (Alaska 1974). We observe that the
dissenting opinion agrees that Criminal Rule 6(s)(1) broadly allows admission before
the grand jury of hearsay evidence that is admissible pursuant to one of the recognized
exceptions to the hearsay rule, but fails to adequately address how admission of such
hearsay squares with its interpretation of the Rule's text, which emphasizes exclusion
of all hearsay evidence except as provided in one of the Rule's three specific exceptions
or as supported by a compelling justification. Separately we note that evidence
admitted under Evidence Rule 801(d)(3) is not hearsay. Alaska R. Evid. 801(d)
(defining statements that are not hearsay).
- 12 - 7740
----------------------- Page 13-----------------------
child. One condition is that "the child will be available" at trial to testify.41 Powell
compares this requirement to Evidence Rule 801(d)(3), requiring that the child must be
presently available for cross-examination. Based on this difference, Powell contends
that the requirements of Evidence Rule 801(d)(3) must exclude such evidence from the
grand jury. But again, Criminal Rule 6(s)(2) addresses hearsay statements that would
otherwise be inadmissible at trial. It allows hearsay evidence that is arguably less
reliable than that contemplated by Evidence Rule 801(d)(3): for instance, the
statements do not have to be video-recorded, and Criminal Rule 6(s)(2) does not require
the interviews or questions eliciting the statements at issue to be "conducted in a manner
that would avoid undue influence of the victim."42 Evidence Rule 801(d)(3) in contrast
contemplates the requirements for admission at trial.43 Those requirements must be
considered through the conditional lens contained within the first sentence of
Criminal Rule 6(s).
In concluding that video-recorded statements made admissible by
Evidence Rule 801(d)(3) are nevertheless inadmissible at the grand jury stage, the court
of appeals discussed a decision of the Nevada Supreme Court, Rugamas v. Eighth
Judicial District Court.44 The Rugamas court considered whether a hearsay exception
applied within the context of grand jury proceedings.45 Significantly, during the time
period at issue in Rugamas, in Nevada "the grand jury [could] receive none but legal
41 Alaska R. Crim. P. 6(s)(2)(iv) (emphasis added).
42 Compare Alaska R. Evid. 801(d)(3)(D), (F), with Alaska R. Crim. P.
6(s)(2).
43 See Alaska R. Evid. 101(a); id. 101(a) cmt. (describing scope of
application of evidentiary rule and noting that Criminal Rule 6(s) governs grand jury
evidence).
44 State v. Powell, 487 P.3d 609, 615 (Alaska App. 2021) (citing Rugamas
v. Eighth Jud. Dist. Ct., 305 P.3d 887 (Nev. 2013)).
45 Rugamas, 305 P.3d at 890.
- 13 - 7740
----------------------- Page 14-----------------------
evidence . . . to the exclusion of hearsay or secondary evidence."46 A statutory hearsay
exception permitted hearsay statements of child victims to be introduced at criminal
proceedings, only if the trial court "finds, in a hearing out of the presence of the jury,"
that the statements have sufficient indicators of trustworthiness.47 The Nevada
Supreme Court held that these statements were not admissible before the grand jury,
because the "vigorous contest" about admissibility and a hearing is not available at the
48
grand jury stage.
But the Nevada Supreme Court's analysis in Rugamas maps poorly onto
Alaska law. Nevada's provisions controlling admissibility of evidence at grand jury
were significantly different from our Rule. Indeed, the Nevada statute centered on the
present ("none but legal evidence"),49 while our Rule is forward-looking and
conditional, asking whether foundational requirements would be met at trial. This key
distinction renders the Nevada Supreme Court's reasoning less persuasive when
considering the text of our rule.
Powell's interpretation of Criminal Rule 6(s) would also lead to absurd
results. A Rule that all foundational requirements must be met at the grand jury
proceeding would necessarily lead to the exclusion of many types of evidence we have
clearly contemplated being admissible in those proceedings. For example, our Rules
and precedent anticipate the presentation of scientific evidence at a grand jury
46 Former Nev. Rev. Stat. § 172.135 (1999). Nevada has since amended its
grand jury statute to specifically allow for the hearsay statements of child victims at the
grand jury. See 2015 Nev. Stat. ch. 148, § 5 at 578-79 (codified as amended at Nev.
Rev. Stat. § 172.135(2)).
47 Nev. Rev. Stat. § 51.385. This statutory hearsay exception still exists for
criminal proceedings, but Nevada amended its grand jury statute to allow this form of
hearsay at the grand jury. See 2015 Nev. Stat. ch. 148, § 5 at 578-79; Nev. Rev. Stat. §
172.135(2).
48 Rugamas, 305 P.3d at 895.
49 Former Nev. Rev. Stat. § 172.135 (1999).
- 14 - 7740
----------------------- Page 15-----------------------
proceeding without the protections afforded by an adversarial hearing on the reliability
of that evidence that would be available to a defendant at trial.50 Under Powell's
interpretation of Criminal Rule 6(s), because no trial judge is available to evaluate
scientific evidence for accuracy and reliability, as required by Daubert/Coon , scientific
51
expert reports and testimony would be excluded from grand jury proceedings.
It is not just scientific evidence that would be excluded under Powell's
interpretation of Criminal Rule 6(s). Character evidence under
Alaska Evidence Rule 404(b)(2)-(4) would be excluded without a hearing.52 Indeed,
Powell's reading of Criminal Rule 6(s) could be interpreted to exclude all evidence
50 See Dague v. State , 81 P.3d 274, 276 (Alaska 2003) (discussing testimony
before grand jury by expert in pediatrics and child abuse); Frink v. State, 597 P.2d 154,
163 (Alaska 1979) (deciding scientific expert reports would have been admissible at
grand jury) (quoting State v. Gieffels, 554 P.2d 460, 465 n.22 (Alaska 1976));
McKinnon v. State , 526 P.2d 18, 27-28 (Alaska 1974) (deciding lab report was
admissible at grand jury); State v. Coon, 974 P.2d 386, 393-96 (Alaska 1999) (adopting
Daubert test for admission of scientific evidence under Evidence Rule 702 and
requiring trial judge to first determine admissibility under that standard) (citing Daubert
v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-95 (1993)), abrogated on other
grounds by State v. Sharpe, 435 P.3d 887, 899-900 (Alaska 2019); see also Henry v.
State, No. A- 11315, 2014 WL 7005580, at *4 (Alaska App. Dec. 10, 2014) (discussing
nurse's testimony at grand jury about whether stab wounds were life-threatening);
Pickering v. State, No. A-9943, 2011 WL 488904, at *1-2 (Alaska App. Feb. 9, 2011)
(discussing testimony about blood spatter presented to grand jury); Paulo v. State, No.
A-8948, 2008 WL 314182, at *1-2 (Alaska App. Feb. 6, 2008) (discussing physician's
and paramedic's testimony to grand jury regarding likely causes of victim's injuries);
Wood v. State, No. A-4765, 1994 WL 16196223, at *3-5 (Alaska App. July 13, 1994)
(concluding autopsy report was admissible at grand jury); St. John v. State, 715 P.2d
1205, 1211 (Alaska App. 1986) (determining medical records and results of blood-
alcohol test were admissible before grand jury).
51 See Coon, 974 P.2d at 393-96 (citing Daubert, 509 U.S. at 589-95).
52 See Bingaman v. State, 76 P.3d 398, 416 (Alaska App. 2003) (holding
"trial judges must conduct a balancing under Evidence Rule 403 and must explain their
decision on the record" when State offers evidence of defendant's prior bad acts allowed
under Evidence Rule 404(b)(2)-(4) (emphasis in original)).
- 15 - 7740
----------------------- Page 16-----------------------
requiring an adversarial hearing and judicial decision on its admissibility before it is
introduced at trial, a result clearly inconsistent with our precedent. Our interpretation
of Criminal Rule 6(s) maintains the reliability of evidence presented to the grand jury,
through examination of how the Rules of Evidence will determine admissibility at trial,
while not casting away evidence due merely to the preliminary nature and timing of the
proceedings.
Court of appeals precedent also supports our interpretation of
Criminal Rule 6(s).53 In State v. Nollner, for example, a child victim of sexual assault
identified the defendant to an examining physician.54 The case law regarding whether
such a statement could fall within the hearsay exception for statements made for the
purpose of receiving medical treatment was evolving at the time; the court of appeals
held that the authority "in favor of admitting [such] statements . . . [was] sufficiently
55
strong" to justify the prosecution's decision to present the statements to the grand jury.
In light of the uncertain but probable admissibility of the statements, the court found a
reasonable, good faith belief of admissibility to be sufficient to support admissibility
before the grand jury.56 The court of appeals acknowledged the role of the good faith
assessment of the prosecutor at the grand jury stage for evidence whose admissibility
57
at trial is probable, but likely to be contested.
53 State v. Nollner, 749 P.2d 905, 908 (Alaska App. 1988).
54 Id. at 907-08.
55 Id at 908; see also Davison v. State, 282 P.3d 1262, 1267-70 (Alaska 2012)
(establishing test for determining when hearsay statements of child victims to
physicians performing forensic exams are admissible under exception for statements
for purpose of medical diagnosis or treatment).
56 Id. at 908-09. The court also found, in the alternative, that the child's
inability to testify was a compelling justification. Id.
57 Id. at 908-09, 909 n.4.
- 16 - 7740
----------------------- Page 17-----------------------
Both the plain meaning of the text of Criminal Rule 6(s) and the function
of grand jury proceedings support the prospective and conditional nature of the Rule.
The Rule plainly allows for the admission of evidence at grand jury where that evidence
would be admissible at trial. This remains true where certain foundational requirements
cannot be met in the grand jury context, so long as the prosecutor has a good faith belief
that those requirements would be met at or by the time of trial. As such, to the extent
the recorded statements at issue in this matter would be admissible at trial, they were
admissible before the grand jury.
2. The purpose of Criminal Rule 6(s) confirms the plain meaning.
Before Criminal Rule 6(s) was adopted, we limited the admissibility of
hearsay before the grand jury in a series of cases.58 First, in Parks v. State, we held that
all evidence coming before the grand jury must "rationally establish the facts sought to
be established," and that hearsay evidence could meet that standard.59 Later, in
Burkholder v. State, we held that hearsay without any indication of reliability does not
provide sufficient probative value to be the basis of an indictment, because it cannot
rationally establish any facts.60 In Taggard v. State we clarified that this is a two-part
analysis.61 Whenever hearsay evidence has been introduced to the grand jury, courts
should first determine whether sufficient evidence was presented to rationally establish
the facts and second "determine whether the credibility of the informant has been
sufficiently established so that the grand jury may know how much weight to give to
58 See Taggard v. State, 500 P.2d 238, 242-43 (Alaska 1972); Burkholder v.
State, 491 P.2d 754, 757-58 (Alaska 1971); State v. Parks, 437 P.2d 642, 644-45
(Alaska 1968).
59 Parks, 437 P.2d at 644-45.
60 Burkholder, 491 P.2d at 757-58.
61 Taggard, 500 P.2d at 242-43.
- 17 - 7740
----------------------- Page 18-----------------------
the hearsay testimony."62 The evidence of credibility must either demonstrate the
reliability of the declarant or independently corroborate the declarant's statement.63 In
each of these cases, the focus was not on whether the evidence would later be admissible
at trial, but whether it was sufficiently reliable to support a reasoned decision about the
likelihood of the accused being found guilty at a future criminal trial.
In Taggard we noted our approval of the American Bar Association's
Standards for Criminal Justice on the role of the prosecutor at grand jury: "A prosecutor
should present to the grand jury only evidence which he believes would be admissible
at trial."64 Shortly thereafter we amended Criminal Rule 6, adding similar language.65
Criminal Rule 6(s) is a functionally equivalent conditional and forward-looking
standard, instructing the prosecutor to make a good faith, reasonable assessment of
whether evidence would be admissible at trial in deciding what to present before the
grand jury. Criminal Rule 6(s) also limited what otherwise inadmissible hearsay
evidence could be heard before the grand jury. Outside of the Rule's three specific
exceptions for hearsay that is not otherwise admissible, there must be a "compelling
justificati on" to introduce hearsay that would not be admissible at trial,66 which we have
62 Id. at 242-43.
63 Id.
64 Id. at 242 (quoting AM. BAR ASS'N PROJECT ON STANDARDS FOR CRIM.
JUST., STANDARDS RELATING TO THE PROSECUTION FUNCTION AND THE DEFENSE
FUNCTION § 3.6(a), at 88 (Approved Draft 1971)).
65 Alaska Supreme Court Order No. 157 (Jan. 22, 1973) ("Admissibility of
Evidence. Evidence which would be legally admissible at trial shall be admissible
before the grand jury. In appropriate cases, however, witnesses may be presented to
summarize admissible evidence if the admissible evidence will be available at trial.
Hearsay evidence shall not be presented to the grand jury absent compelling
justification for its introduction. If hearsay evidence is presented to the grand jury, the
reasons for its use shall be stated on the record.").
66 Alaska R. Crim. P. 6(s)(1).
- 18 - 7740
----------------------- Page 19-----------------------
interpreted to mean that the hearsay is "necessary."67 Additionally, we retained the
Taggard test for inadmissible hearsay evidence shown to the grand jury under
Criminal Rule 6(s): such hearsay must be sufficiently specific and reliable to be
68
admissible before the grand jury, in addition to having a compelling justification.
Our precedent thus confirms that the overall purpose of Criminal Rule 6(s)
is to ensure that the grand jury has evidence with which it can make a "reliable
determination" of probability of guilt, not necessarily to exclude all hearsay.69 The
Rules of Evidence set forth standards that indicate which evidence is reliable.
Criminal Rule 6(s), read in concert with the Rules of Evidence, instructs which evidence
is sufficiently reliable to present to the grand jury. But to the extent that admissibility
cannot be known without objection or judicial review, Alaska grand juries have
previously relied, and continue to rely, upon the judgment of the prosecutor that the
evidence would be admissible, as well as the check on that judgment that comes from
post-indictment motion work and potential dismissal.
3. This interpretation does not undermine the grand jury's
protective function for the accused.
We recognize Powell's concern about ensuring reliable evidence before
the grand jury, and the potential harm to wrongly accused persons if indictments can be
returned on unreliable evidence. Our interpretation maintains protections against the
admission of unreliable evidence in accord with our most recent grand jury-related
decision, Wassillie v. State.70 In Wassillie we dismissed an indictment and reversed
Wassillie's subsequent conviction because the indictment and conviction were based
67 State v. Gieffels, 554 P.2d 460, 464-65 (Alaska 1976).
68 Galauska v. State, 527 P.2d 459, 464-66 (Alaska 1974) (quoting Taggard,
500 P.2d at 242-43.
69 Gieffels, 554 P.2d at 465.
70 411 P.3d 595 (Alaska 2018).
- 19 - 7740
----------------------- Page 20-----------------------
primarily on unreliable and inadmissible hearsay evidence.71 In particular the bulk of
the evidence relied upon consisted of an incident report describing an alleged escape
from a halfway house.72 We concluded unequivocally that the incident report lacked
the indicia of reliability inherent in meeting the business records exception, because it
was written by a staff member who was an active participant in an investigation and it
was not a routine record.73 We applied a forward-looking interpretation of Rule 6(s) in
recognizing that the grand jury heard hearsay evidence that could never meet the
business records exception to hearsay at trial, and that the evidence clearly would not
otherwise be legally admissible at trial.
Indeed, the contrast between this case and Wassillie highlights an
important limitation on the admissibility of evidence under Criminal Rule 6(s). The
prosecutor must provide a sufficient foundation for the grand jury to be able to assess
the reliability of evidence that is either hearsay or qualifies as an exception to hearsay.
This does not lead to the slippery slope that Powell predicts. Rather, this interpretation
ensures there are still limits on evidence admissible before the grand jury, requiring a
sufficient foundation to assess reliability.
We also note the other limits on prosecutorial presentations to the grand
jury: the prosecutor must present exculpatory evidence and the prosecutor's
presentation must be a fair representation of the evidence.74 A defendant can file a
motion to dismiss the indictment to challenge any underlying issues.75 Evidence
admitted at grand jury may also later be excluded from trial after a suppression hearing
71 Id. at 608-09, 614.
72 Id. at 598.
73 Id. at 602-04.
74 See Zurlo v. State, 506 P.3d 777, 783-84 (Alaska App. 2022).
75 Alaska R. Crim. P. 12(b)(2).
- 20 - 7740
----------------------- Page 21-----------------------
if it was obtained improperly.76 Further, we do not disturb our previous holdings that
if an indictment failing to meet these standards results in a conviction, that conviction
77
will be overturned, even following an error-free trial.
Additionally, the dual function of the grand jury supports this
interpretation of Rule 6(s). The grand jury is an important preliminary step in criminal
prosecutions, serving to protect the public against prosecutorial overreach.78 The grand
jury, however, serves a dual purpose: it is "both a shield and sword of justice."79 The
grand jury is simultaneously "an investigatory and accusatory body, tasked with
determining whether criminal proceedings against the accused should be instituted,"
and a "protective" body, protecting the rights and interests of the accused against
governmental abuses.80 To effectuate these dual purposes, the grand jury must hear
sufficient evidence in order to make a "reliable determination . . . as to the probability
76 See, e.g., State v. White, 707 P.2d 271, 279-80 (Alaska App. 1985)
(deciding that grand jury had sufficient evidence, disregarding fruits of illegal search,
to indict).
77 Wassillie, 411 P.3d at 609 ("Only by reversing a conviction based on an
invalid indictment can we safeguard the grand jury's role as a check on overzealous
prosecution."); Adams v. State , 598 P.2d 503, 510 (Alaska 1979) ("If we were to find
that a trial could validate an otherwise invalid indictment, the right to indictment by a
grand jury would become a nullity and the grand jury would cease to operate as a check
upon the district attorney 's power to initiate prosecution."); Taggard v. State, 500 P.2d
238, 243 (Alaska 1972) ("If the indictment is seriously flawed, the conviction cannot
stand"); see also Zurlo, 506 P.3d at 788 ("Alaska law is clear that the grand jury
indictment is the 'foundation' underlying a criminal prosecution in this state: 'If the
indictment is seriously flawed, the conviction cannot stand.' " (quoting Taggard, 500
P.2d at 243)).
78 Wassillie, 411 P.3d at 605-07 (summarizing discussion of amendment at
Committee on the Preamble and the Bill of Rights during Proceedings of Alaska
Constitutional Convention).
79 Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007).
80 Id. (first citing United States v. Calandra, 414 U.S. 338, 343-44 (1974);
and then quoting Preston v. State, 615 P.2d 594, 602 (Alaska 1980)).
- 21 - 7740
----------------------- Page 22-----------------------
of [the accused's] guilt."81 If Criminal Rule 6(s) was read to exclude evidence that
would be legally admissible at trial or require pre-litigation of such evidence, the
investigatory and accusatory function of the grand jury would be undermined. Instead,
the natural, prospective reading of Criminal Rule 6(s) balances these two functions.
In all, we conclude that Criminal Rule 6(s) means what the rule plainly
states - it permits the presentation of evidence to the grand jury that would be
admissible at a future trial. And we reiterate that this ruling is consistent with both
precedent and the function and nature of grand jury proceedings.
B. The Interplay Between Criminal Rule 6(s) And
Evidence Rule 801(d)(3) Effectuates The Legislative Purposes
Underlying Rule 801(d)(3).
Contrary to Powell's argument and the court of appeals' analysis,82 it is
hardly surprising that the text of Evidence Rule 801(d)(3) does not address admissibility
at grand jury proceedings. And this certainly does not establish an intent by the
legislature that evidence admissible under Evidence Rule 801(d)(3) may not be
presented to the grand jury. Indeed, the Evidence Rules need not particularly address
admissibility during grand jury proceedings, because Criminal Rule 6(s) performs that
function. Applying Criminal Rule 6(s) to determine what evidence contemplated by
Evidence Rule 801(d)(3) may be presented to the grand jury both maintains the
81 State v. Gieffels, 554 P.2d 460, 465 (Alaska 1976).
82 See State v. Powell, 487 P.3d 609, 614 (Alaska App. 2021) ("The
legislative history of Evidence Rule 801(d)(3) contains no discussion at all about
whether or how the rule could be applied in the grand jury context. In contrast, there
was extensive discussion in the legislative history about the application of the rule 's
requirements at trial.").
- 22 - 7740
----------------------- Page 23-----------------------
reliability of evidence presented to the grand jury and is consistent with the legislature's
goals in enacting Evidence Rule 801(d)(3).83
As acknowledged by both Powell and the court of appeals, one of the
legislature's goals in enacting Evidence Rule 801(d)(3) was to avoid repeated
traumatization of child victims while providing reliable evidence of crimes involving
child victims to the jury.84 The legislature intended to "amplify the voices of children
who have been abused and children who have been sexually assaulted and let their
voices shine in a courtroom as strongly as possible" by allowing video-recorded
statements to be admitted, instead of forcing children to testify and potentially be unable
to recount an accurate version of events.85 Additionally, the legislature wanted to
maintain protection of defendants' rights to confront their accusers while still admitting
these recorded statements.86 Recognizing the interplay between Criminal Rule 6(s) and
Evidence Rule 801(d)(3), with Evidence Rule 801(d)(3) addressing admissibility of
83 We do not mean to imply here that Criminal Rule 6(s) should be
interpreted so as to effectuate the legislature's goals in subsequently promulgating
Evidence Rule 801(d)(3); rather, we observe how the interplay between the two rules
explains the consistency between the legislature's stated goals in enacting Evidence
Rule 801(d)(3) and that rule's provisions regarding admissibility at trial, without
separate mention of admissibility at grand jury proceedings.
84 See Hayes v. State, 474 P.3d 1179, 1184-85 (Alaska App. 2020) (citing
Statement of Sen. Hollis French at 9:27:09-9:28:30, Hearing on S.B. 117 Before the S.
Judiciary Comm., 24th Leg., 1st Sess. (Mar. 31, 2005)); Augustine v. State , 355 P.3d
573, 582-83 (Alaska App. 2015) (citing Statement of Sen. French at 9:26:58-9:31:02,
Hearing on S.B. 117 Before the S. Judiciary Comm., 24th Leg., 1st Sess. (Mar. 31,
2005)).
85 Statement of Sen. French at 39:12-39:21, Deb. on J. Comm. Substitute for
Sponsor Substitute for H.B. 53 (S.C.S. C.S.S.S.H.B. 53) (FIN) S. Floor Sess., 24th Leg.,
1st Sess. (May 9, 2005).
86 Statements of Sen. French, Sen. Gene Therriault, and Sen. Ralph Seekins
at 9:39:01-9:44:26, Hearing on S.B. 117 Before the S. Judiciary Comm., 24th Leg., 1st
Sess. (Mar. 31, 2005), cited in Augustine, 355 P.3d at 584.
- 23 - 7740
----------------------- Page 24-----------------------
evidence at trial and Criminal Rule 6(s) addressing admissibility before the grand jury,
aligns with these legislative purposes by limiting the number of times child victims have
to testify without encroaching upon a defendant's right to confront witnesses at trial.
1. The prospective reading of Criminal Rule 6(s) effectuates the
legislature's goals related to reliability of evidence and
minimizing re-traumatization of child victims.
While the legislature appears to have most directly considered the
application of Evidence Rule 801(d)(3) to trial proceedings, the concerns consistently
stated by legislators about the impact of requiring child victims to repeat their account
multiple times throughout the criminal justice process apply with equal force to the
prospect of requiring children to testify before a grand jury.87 Through
Evidence Rule 801(d)(3), the legislature sought to ensure that child victims of crime
would not unnecessarily be required to testify in court proceedings.88 Along these lines,
legislators were concerned both with promoting the well-being of the child89 and
protecting the efficacy of the prosecution.90 Those dual concerns are wholly relevant
87 See Statement of Sen. French at 30:07-31:09, Deb. on S.C.S. C.S.S.S.H.B.
53 (FIN) S. Floor Sess., 24th Leg., 1st Sess. (May 9, 2005) (listing the large number of
times children were then required to retell stories); Statement of Sen. Seekins at
9:43:08-9:43:25, Hearing on S.B. 117 Before the S. Judiciary Comm., 24th Leg., 1st
Sess. (Mar. 31, 2005) (agreeing with Senator Therriault that "we don't want to, in this
process, force the child once again to reiterate under direct testimony the allegations
that are already included in the tape").
88 Statement of Sen. French at 32:37-33:07, Deb. on S.C.S. C.S.S.S.H.B. 53
(FIN) S. Floor Sess., 24th Leg., 1st Sess. (May 9, 2005) (describing how under
Rule 801(d)(3) child advocacy center recording would supplant child having to testify
repeatedly on stand, "as long as the child is available to be cross-examined").
89 Id. at 30:48-31:15 (describing pain child faces when forced to testify about
"the most shameful and painful private acts that one can imagine" in repeated
interviews).
90 Statement of Sen. French at 9:28:22-9:28:48, Hearing on S.B. 117 Before
the S. Judiciary Comm., 24th Leg., 1st Sess. (Mar. 31, 2005) (expressing concerns about
pressure of direct examination causing child to tell unconvincing story).
- 24 - 7740
----------------------- Page 25-----------------------
throughout children's involvement in the criminal justice system, including during and
surrounding grand jury proceedings. A brief review of the legislative history confirms
this conclusion.
Evidence Rule 801(d)(3) was introduced to the Senate Judiciary
Committee on March 31, 2005, as Senate Bill 117 by Senator Hollis French.91 In
introducing the legislation, Senator French asserted that admission of interviews
conducted at child advocacy centers would allow the State to enhance the efficacy and
accuracy of its prosecutions while maintaining the safety and security of child victims,
noting that the child advocacy center setting would make the child victims feel "safer
92
and more confident."
The other senators on the Judiciary Committee were concerned that
language in the proposed bill could inadvertently require a child to testify. Senator
Gretchen Guess questioned the wording of subsection (B),93 originally written to
require that "the victim is present at the proceeding and available to testify."94 She
thought that the requirement of a victim's "presence" would be read literally to require
physical presence in the courtroom as opposed to availability for cross-examination,
and was concerned about the intimidation that a child might experience if forced to
observe the trial of the offender.95 And Senator Gene Therriault voiced similar
concerns, specifically that the term "testify" might be too broad, and it could imply that
91 Id. at 9:27:00-9:29:31.
92 Id. at 9:27:17-9:28:52 (detailing how environment of child advocacy
centers makes children more comfortable, and thus more likely to provide detailed and
accurate testimony).
93 Statement of Sen. Gretchen Guess at 9:35:23-9:36:13, Hearing on S.B.
117 Before the S. Judiciary Comm., 24th Leg., 1st Sess. (Mar. 31, 2005).
94 S.B. 117, 24th Leg., 1st Sess. (Feb. 28, 2005).
95 Statement of Sen. Guess at 9:35:23-9:36:13, Hearing on S.B. 117 Before
the S. Judiciary Comm., 24th Leg., 1st Sess. (Mar. 31, 2005).
- 25 - 7740
----------------------- Page 26-----------------------
the prosecution must call victims as witnesses under direct examination, thereby
frustrating the purpose of the proposed Rule.96 Because these interpretations would be
inconsistent with the intent of Evidence Rule 801(d)(3), the committee amended
97
subsection (B) to require only that "the victim is available for cross-examination."
SB 117 was otherwise largely unchanged when it reached the Senate
floor.98 Senator French gave a detailed introductory statement about the purpose of the
hearsay exception contained in the proposed Evidence Rule 801(d)(3).99 He asserted
that, in contrast with the intimidating atmosphere inherent in courtroom testimony, child
advocacy center interviews facilitate children's open and honest telling of events they
have experienced.100 He contended that interviews conducted by trained professionals
within the specialized setting of the child advocacy center often yield more complete,
accurate, and intelligible information than a child's testimony in open court.101 Turning
from the reliability of the evidence to the welfare of the child, he discussed the many
96 Statement of Sen. Therriault at 9:38:35-9:39:01, Hearing on S.B. 117
Before the S. Judiciary Comm., 24th Leg., 1st Sess. (Mar. 31, 2005).
97 Id. at 9:45:45-9:46:10 (amending section (B) to read "the victim is present
at the proceeding and available for cross examination"); Statements of Sen. Guess and
Sen. Seekins at 9:47:36-9:48:23, Hearing on S.B. 117 Before the S. Judiciary Comm.,
24th Leg., 1st Sess. (Mar. 31, 2005) (amending section (B) to read "the victim is
available for cross examination").
98 On May 9, 2005, S.B. 117 was incorporated into an unrelated bill,
H.B. 53, and presented to the Senate floor for debate. S.C.S. C.S.S.S.H.B. 53 (FIN),
24th Leg., 1st Sess. (2005); Deb. on S.C.S. C.S.S.S.H.B. 53 (FIN) S. Floor Sess., 24th
Leg., 1st Sess. (May 9, 2005). See Statement of Sen. Guess at 39:50-40:10, Deb. on
S.C.S. C.S.S.S.H.B. 53 (FIN) S. Floor Sess., 24th Leg., 1st Sess. (May 9, 2005).
99 Statement of Sen. French at 29:50-33:07, Deb. on S.C.S. C.S.S.S.H.B. 53
(FIN) S. Floor Sess., 24th Leg., 1st Sess. (May 9, 2005) (describing "gauntlet of
interviews" that child victims must go through in order to aid prosecution).
100 Id.
101 Id.
- 26 - 7740
----------------------- Page 27-----------------------
times child victims are required to retell stories, including that "the district attorney
would want to hear the story before it was presented to the grand jury [and] the story
would be repeated again before the grand jury."102 He explained that "if [the video
recording is] used correctly, we can spare a child the pain of having to go through this
103
story over and over and over again."
The goal of the legislation was to create, through the use of video
recording, a "single interview" to serve as "the record of the incident."104 This purpose
would be undermined if a child were required to testify before the grand jury. Although
the defendant and the judge are not present during a grand jury proceeding, the setting
of such a proceeding is nonetheless formal and unfamiliar for children, and a child's
experience testifying before a large panel of grand jurors could certainly be
overwhelming or traumatic.105 Moreover, the legislature's concern about ensuring
accurate information through use of child advocacy center interviews rather than having
the child testify in a formal courtroom proceeding applies not just to the trial setting but
to grand jury proceedings as well.106 The legislature's emphasis on the admissibility of
recorded child advocacy center interviews at trial should not be assumed to indicate that
the legislature intended Evidence Rule 801(d)(3) not to apply to grand jury proceedings.
Rather, in light of the prospective nature of Criminal Rule 6(s), it would be consistent
102 Id. at 30:07-31:09.
103 Id. at 31:48-31:55.
104 Id. at 31:45-31:50 (emphasis added).
105 See id. at 30:48-31:15 (describing pain of being forced to testify about
"the most shameful and painful private acts that one can imagine"); State v. Nollner,
749 P.2d 905, 907 (Alaska App. 1988) (describing difficulty child victim had while
testifying before the grand jury).
106 Statement of Sen. French at 31:57-32:36, Deb. on S.C.S. C.S.S.S.H.B. 53
(FIN) S. Floor Sess., 24th Leg., 1st Sess. (May 9, 2005) (describing how "excruciating"
it can be to testify in room full of strangers and authority figures).
- 27 - 7740
----------------------- Page 28-----------------------
for the legislature to have assumed that the recorded interviews would be admissible at
grand jury.
2. The interplay between Criminal Rule 6(s) and
Evidence Rule 801(d)(3) does not abridge the defendant's right
to confront witnesses at trial.
In constructing Evidence Rule 801(d)(3), the Senate Judiciary Committee
sought to preserve a defendant's constitutional rights of confrontation. Both the United
States and the Alaska Constitutions guarantee individuals accused of a crime the right
to confront the witnesses against them.107 The legislature sought to preserve this right
in part (B) of Evidence Rule 801(d)(3), which requires that the child be available for
cross-examination.108 The Committee's discussion of the bill was largely focused on
ensuring admission of child advocacy center interviews as evidence while protecting
defendants' constitutional rights.109 Indeed, on the Senate floor, Senator French
contended that the child's availability for cross-examination protects this right,
providing a robust balance between the safety of children, the administration of justice,
110
and the constitutional rights of defendants.
107 U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him . . . ."); Alaska Const.
art. I, § 11 ("In all criminal prosecutions, the accused shall have the right . . . to be
confronted with the witnesses against him . . . .").
108 Alaska R. Evid. 801(d)(3)(B).
109 See Statements of Sen. French, Sen. Therriault, Sen. Guess, and Sen.
Seekins at 9:27:01-9:46:10, Hearing on S.B. 117 Before the S. Judiciary Comm., 24th
Leg., 1st Sess. (Mar. 31, 2005).
110 Statement of Sen. French at 32:47-33:05, Deb. on S.C.S. C.S.S.S.H.B. 53
(FIN) S. Floor Sess., 24th Leg., 1st Sess. (May 9, 2005).
- 28 - 7740
----------------------- Page 29-----------------------
The right to confront witnesses has been interpreted as the right to cross-
examine those witnesses at trial.111 The right is a trial right that does not apply to the
grand jury stage of proceedings.112 The court of appeals acknowledged this in its
decision, but focused on this as an indication that the legislature did not intend for the
Evidence Rule to apply to grand jury proceedings at all.113 But considering the
prospective nature of Criminal Rule 6(s) and the lack of confrontation rights at grand
jury, there would have been no reason for the le gislature to comment on confrontation
rights in the grand jury context. Rather, it would be consistent for the legislature to
assume that the question of cross-examination would not apply to grand jury
proceedings.
The plain language of Criminal Rule 6(s) provides a prospective standard
for examining whether evidence would be admissible at a future trial. This aligns with
111 See e.g., Davis v. Alaska , 415 U.S. 308, 315-18 (1974) (holding denial of
cross-examination of key witness to show probation status was unconstitutional);
Crawford v. Washington, 541 U.S. 36, 68-69 (2004) (holding admission of out-of-court
testimonial statements unconstitutional because of denial of opportunity for cross-
examination); see also id. at 59 n.9 ("[W]hen the declarant appears for cross-
examination at trial, the Confrontation Clause places no constraints at all on the use of
his prior testimonial statements.").
112 State v. Nollner, 749 P.2d 905, 908 (Alaska App. 1988) ("A defendant
does not, however, have the right to confront the state's witnesses at the grand jury.");
see also Barber v. Page, 390 U.S. 719, 725 (1968) ("The right to confrontation is
basically a trial right . . . simply because [the function of a preliminary hearing] is the
more limited one of determining whether probable cause exists to hold the accused for
trial."); California v. Green, 399 U.S. 149, 157 (1970) ("[I]t is th[e] literal right to
'confront' the witness at the time of trial that forms the core of the values furthered by
the Confrontation Clause . . . ."); Lemon v. State , 514 P.2d 1151, 1153 (Alaska 1973)
(noting that Confrontation Clause in Alaska Constitution parallels Confrontation Clause
in U.S. Constitution).
113 State v. Powell, 487 P.3d 609, 612-14 (Alaska App. 2021) ("[A]lthough a
defendant has the right to cross-examine witnesses at trial, there is no right to cross-
examination at a grand jury proceeding.").
- 29 - 7740
----------------------- Page 30-----------------------
the legislature's intent behind Evidence Rule 801(d)(3), requiring that the defendant
would be able to confront his accuser in the context of trial. And again, this interplay
between Criminal Rule 6(s) and Evidence Rule 801(d)(3) explains the consistency
between Evidence Rule 801(d)(3)'s provisions specific to admissibility at trial, without
specific discussion of grand jury proceedings, and the dual purposes behind that Rule
"(1) to protect children from the traumatic experience of testifying; and (2) to provide
114
the best evidence of what happened to the jury."
C. The Child Advocacy Center Interview May Have Been Admissible At
Powell's Grand Jury.
We do not ultimately rule on the admissibility of the recorded interviews
before the grand jury here, as the superior court has not yet ruled on the question in light
of our interpretation of Criminal Rule 6(s). To the extent that further substantive
proceedings on remand were possible, we would remand to the court of appeals, to
remand to the superior court, for the superior court to determine the admissibility of the
recorded child advocacy center interviews of A.S. and A.O. consistent with this
decision. This would require the superior court to determine the admissibility of the
recordings before the grand jury by analyzing whether the recordings would meet the
requirements of Evidence Rule 801(d)(3) as of the time of trial.
CONCLUSION
We REVERSE the court of appeals' decision and REMAND for
proceedings consistent with this decision, understanding that such proceedings are
impacted by Powell's death.
114 Hayes v. State, 474 P.3d 1179, 1184-85 (Alaska App. 2020).
- 30 - 7740
----------------------- Page 31-----------------------
PATE, Justice, with whom CARNEY, Justice, joins, dissenting.
INTRODUCTION
1
Our constitution guarantees the right to an indictment by a grand jury, a
right that we have held "should operate to control abuses by the government and protect
the interests of the accused."2 Indictment by a grand jury "is not just a step in [the
3
criminal] process; it is a foundation stone."
Nearly 50 years ago, we recognized that the presentation of hearsay
evidence to the grand jury, "if unchecked, would erode the protective value of the grand
jury so as to make it nothing more than an administrative arm of the district attorney's
office."4 To guard against that erosion, we enacted a Criminal Rule providing that
"hearsay evidence shall not be presented to the grand jury absent compelling
5
justification for its introduction."
1 Alaska Const. art. I, § 8.
2 Coleman v. State, 553 P.2d 40, 47 (Alaska 1976); see also State v. Gieffels,
554 P.2d 460, 465 (Alaska 1976) ("[B]efore the accused suffers any of the grave
inconveniences which are apt to ensue upon the return of a felony indictment, there
should be a reliable determination made as to the probability of his guilt."); Cameron
v. State, 171 P.3d 1154, 1157 (Alaska 2007) ("[Our] attention to the grand jury's
protective role helps prevent the grand jury from becoming a mere 'rubber stamp' for
the prosecutor." (quoting United States v. Al Mudarris, 695 F.2d 1182, 1188 (9th Cir.
1983))); State v. Parks, 437 P.2d 642, 646 (Alaska 1968) (Rabinowitz, J., concurring)
("[O]ur system of criminal laws must include procedures whereby cases in which there
is an absence of reliable evidence can be detected and filtered out prior to the trial
stage.").
3 Wassillie v. State, 411 P.3d 595, 608 (Alaska 2018).
4 Gieffels, 554 P.2d at 465.
5 See former Alaska R. Crim. P. 6(r) (2018); Alaska Supreme Court Order
No. 157 (Jan. 22, 1973); see also Gieffels, 554 P.2d at 464. Subsequent rule changes
added exceptions, see, e.g., ch. 81, § 21, SLA 1998, none of which are directly at issue
in this case. As the court notes, this rule was also re-lettered to Rule 6(s) effective
December 2022. See Alaska Supreme Court Order No. 1993 (Nov. 29, 2022). Like the
- 31 - 7740
----------------------- Page 32-----------------------
The State violated this rule when it presented the recorded statement of a
14-year-old child to the grand jury in this case. The State has not argued that it had a
compelling justification for presenting the recorded statement rather than live
testimony. And the State could not satisfy the foundational requirements of the hearsay
exclusion in Alaska Evidence Rule 801(d)(3), on which it attempted to rely. The court's
interpretation of Alaska Criminal Rule 6(s) to allow the presentation of hearsay based
on a prediction about its admissibility at a future trial is inconsistent with the history
and purpose of the rule. Although the legislature amended one of the applicable rules
while this case was pending before us,6 I believe the rules that applied at the time of
this grand jury proceeding and the attendant circumstances did not allow the State to
present the recorded statement to the grand jury. I would affirm the judgment of the
court of appeals and therefore respectfully dissent.
DISCUSSION
A. The State Could Not Present Hearsay To The Grand Jury Unless An
Exception Applied Or It Showed A Compelling Justification.
There are two general rules at the center of this case. The first rule is that
7
an out-of-court statement offered to prove the truth of the matter asserted is hearsay.
The second is that "hearsay evidence shall not be presented to the grand jury absent
8
compelling justification for its introduction."
Some out-of-court statements that are offered for their truth are excluded
from the first rule and are not hearsay.9 And some hearsay can be presented to a grand
court, I will refer to it as "Rule 6(s)." Finally, while this case was pending before us,
the legislature passed a bill amending Rule 6(s) significantly, including by removing
the language quoted here. See ch.11, §§ 1, 61, SLA 2024.
6 See ch.11, §§ 1, 61, SLA 2024.
7 Alaska R. Evid. 801(c).
8 Alaska R. Crim. P. 6(s)(1).
9 See Alaska R. Evid. 801(d).
- 32 - 7740
----------------------- Page 33-----------------------
jury: Fo r example, under certain conditions, the State may present hearsay evidence of
an out-of-court statement by a victim of a sexual offense who is under 10 years of age.10
The State may also present some out-of-court statements to a grand jury through the
testimony of a peace officer,11 and it is allowed to present evidence of prior convictions
through various sources of hearsay when a prior conviction is an element of an
offense.12 Finally, it may present hearsay statements under any of the many exceptions
13
to the rule that otherwise prohibits their admission.
When none of these exclusions or exceptions apply, the State may present
hearsay to a grand jury if it has a "compelling justification" for doing so.14 Accordingly,
we have determined that the State may present hearsay evidence to a grand jury when
the witness is not available to testify15 or the witness is a co-defendant who could avoid
10 See Alaska R. Crim. P. 6(s)(2).
11 See Alaska R. Crim. P. 6(s)(3).
12 See Alaska R. Crim. P. 6(s)(6).
13 See Alaska R. Crim. P. 6(s)(1); Galauska v. State, 527 P.2d 459, 464
(Alaska 1974) ("The first sentence of [Criminal Rule 6(s)] deals with the presentment
of admissible evidence and encompasses hearsay evidence which would be admissible
pursuant to one of the recognized exceptions to the hearsay rule."); Alaska R. Evid. 802-
804. Following our decision in Galauska, the legislature amended Rule 6 to allow
admission of additional types of hearsay evidence in grand jury proceedings. See
Alaska R. Crim. P. 6(s)(2); see also discussion infra Section II.B. The amendments did
not disturb our holding in Galauska that the first sentence of Criminal Rule 6(s) allows
admission of hearsay evidence that is otherwise admissible under an exception or
exclusion in the Alaska Rules of Evidence without the need for a compelling
justification. Galauska, 527 P.2d at 464.
14 See Alaska R. Crim. P. 6(s)(1); State v. Gieffels, 554 P.2d 460, 464-65
(Alaska 1976).
15 See, e.g., State v. Johnson, 525 P.2d 532, 536 (Alaska 1974) (describing
presentation of hearsay to grand jury as "justifiable" because of "the necessity of [the
witness's] absence").
- 33 - 7740
----------------------- Page 34-----------------------
testifying by asserting the privilege against self-incrimination.16 On the other hand, we
have held that the mere fact that it would be expensive to transport an otherwise-
available witness to appear before a grand jury is not a "compelling justification" for
17
the presentation of hearsay when no other exception applies.
In this case, the State has not argued that it had a "compelling
justification" for introducing the recorded statement. Indeed, the State would have had
difficulty proving such a justification in this case, given that it told the grand jury that
the child witness was available to testify upon request. In an appropriate case, we could
be asked to determine whether the public interest in protecting a child witness from
unnecessarily revisiting a traumatic experience is a "compelling justification" for the
presentation of a hearsay statement to a grand jury.18 But this is not such a case.
Instead, the State's argument before us depends on showing that the recorded statement
at issue is excluded from the definition of hearsay under Evidence Rule 801(d)(3).
B. The State Could Not Satisfy The Foundational Requirements Of
Evidence Rule 801(d)(3) At The Grand Jury Proceeding.
The State's argument hinges on Evidence Rule 801(d)(3), which provides
that "a recorded statement by the victim of a crime who is less than 16 years of age" is
not hearsay if several foundational requirements are satisfied.19 If the State had satisfied
16 See, e.g., Galauska, 527 P.2d at 465; Preston v. State, 615 P.2d 594, 599
(Alaska 1980).
17 See, e.g., Gieffels, 554 P.2d at 464; Adams v. State , 598 P.2d 503, 508
(Alaska 1979).
18 Cf. Galauska, 527 P.2d at 465 (holding that constitutional interest in
protecting co-defendant's right against self-incrimination constitutes "compelling
justification" for presentation of hearsay to grand jury).
19 See Alaska R. Evid. 801(d)(3).
- 34 - 7740
----------------------- Page 35-----------------------
this rule's requirements, it would have been proper for the State to provide the recorded
statement to the grand jury.20
However, as the court recognizes, several of the requirements in
Evidence Rule 801(d)(3) are "specific to admissibility at trial" and cannot be satisfied
in a grand jury proceeding. These include a requirement that "the victim is available
for cross-examination."21 As the State has acknowledged, "there is no cross-
examination at grand jury."
The State argues that we should interpret Evidence Rule 801(d)(3) so that
some of its requirements apply only at trial, not at a grand jury proceeding. That
interpretation lacks any support in the text of Rule 801(d)(3). To overcome the
unambiguous text, the State thus bears a "correspondingly heavy burden of
demonstrating contrary legislative intent."22 The State has not carried that burden.
The State argues that the legislature "must have intended" that the hearsay
exclusion in Rule 801(d)(3) would apply in grand jury proceedings, but as the court of
appeals explained, "The legislative history of Evidence Rule 801(d)(3) contains no
discussion at all about whether or how the rule could be applied in the grand jury
context."23 Furthermore, the sponsor of Rule 801(d)(3) explained that he intended
several of its foundational requirements - including the requirement that the witness
20 See Galauska, 527 P.2d at 464 & n.4.
21 Alaska R. Evid. 801(d)(3)(B).
22 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
2019) (quoting State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016)); see also State, Dep't
of Nat. Res. v. City of Haines, 627 P.2d 1047, 1049 n.6 (Alaska 1981) ("Consideration
of the legislative history may demonstrate that an ambiguity, although not apparent on
the face of the statute, does exist with respect to the legislature's use of a particular
term. However, if not, then we must adhere to the general rule that if the language of a
statute is unambiguous and expresses the intention of the legislature, it should not be
modified or extended by judicial construction.").
23 State v. Powell, 487 P.3d 609, 614 (Alaska App. 2021).
- 35 - 7740
----------------------- Page 36-----------------------
be available for cross-examination, which cannot be satisfied in a grand jury
proceeding - to help ensure the reliability of the recorded statements and protect
defendants from false accusations.24 That purpose is ill-served by waiving some of the
Rule's foundational requirements in grand jury proceedings. And while there is
evidence in the legislative history suggesting that some legislators and witnesses
supported allowing the presentation of recorded statements to the grand jury,25 the rule
the legislature ultimately adopted did not contain a carve-out for grand jury
proceedings.26 This mixed history cannot carry the State's heavy burden to demonstrate
that the legislature intended something other than what the plain text of Rule 801(d)(3)
says.
The legislature knows how to modify the Criminal Rules to allow the State
to present hearsay evidence of out-of-court statements by child victims to the grand
jury. It did exactly that in 19 85 when it enacted Criminal Rule 6(s)(2), one of the
enumerated exceptions to the prohibition against the presentation of hearsay evidence
24 See Comments of Sen. Hollis French at 9:34:10-9:35:13, Hearing on
S.B. 117 Before the S. Jud. Comm., 24th Leg., 1st Sess. (Mar. 31, 2005).
25 See, e.g., Statement of Sen. French at 29:53-31:10, Floor Debate on Senate
Committee Substitute for Committee Substitute for Sponsor Substitute for House Bill
(S.C.S. C.S.S.S.H.B.) 53 (FIN), 24th Leg., 1st Sess. (May 9, 2005) (criticizing prior
approach to interviews of child victims in which children faced "a gauntlet of
interviews," including by, among others, district attorneys who "would want to hear the
story before it was presented to grand jury," noting victims' stories were then often
"repeated again to the grand jury" and yet again at trial); Testimony of Michelle
Pettijohn, Social Worker, Off. of Child.'s Servs., at 8:41:59-8:42:36, Hearing on
S.B. 117 Before the S. Jud. Comm., 24th Leg., 1st Sess. (Apr. 4, 2005) ("I believe the
taped forensic interview done at a child advocacy center should be admissible in court,
and I strongly believe children should only have to state their story one time.").
26 See ch. 64, § 59, SLA 2005; see also Statement of Sen. French at 32:30-
33:00, Floor Debate on S.C.S. C.S.S.S.H.B. 53 (FIN), 24th Leg., 1st Sess. (May 9,
2005) ("This amendment would . . . change the system, such that the interview done at
the [child advocacy center] could be played at trial, as long as the child is there to be
cross-examined." (emphasis added)).
- 36 - 7740
----------------------- Page 37-----------------------
to a grand jury,27 and again in 1998 when it amended Rule 6(s)(2) to make it applicable
to a wider range of cases.28 Rule 6(s)(2) includes foundational requirements that are
specifically tailored to grand jury proceedings.29 The legislature's failure to add similar
provisions to Evidence Rule 801(d)(3) supports the conclusion that the legislature did
not contemplate grand jury proceedings when adopting Rule 801(d)(3).
In sum, the text of Rule 801(d)(3) clearly includes foundational
requirements that cannot be satisfied at grand jury, and the State has not carried its
"correspondingly heavy burden of demonstrating contrary legislative intent."30 I would
affirm the court of appeals' holding that Rule 801(d)(3) does not apply to grand jury
proceedings31 and conclude that, as a result, the recorded statement at issue in this case
was hearsay and should not have been presented to the grand jury without "compelling
32
justification."
27 See ch. 41, §§ 1-2, SLA 1985; Alaska R. Crim. P. 6(s)(2) ("In a
prosecution for an offense under AS 11.41.410-11.41.458, hearsay evidence of a
statement related to the offense, not otherwise admissible, made by a child who is the
victim of the offense may be admitted into evidence before the grand jury if (i) the
circumstances of the statement indicate its reliability; (ii) the child is under 10 years of
age when the hearsay evidence is sought to be admitted; (iii) additional evidence is
introduced to corroborate the statement; and (iv) the child testifies at the grand jury
proceeding or the child will be available to testify at trial.").
28 See ch. 81, § 21, SLA 1998.
29 See Alaska R. Crim. P. 6(s)(2).
30 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
2019) (quoting State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016)).
31 See State v. Powell, 487 P.3d 609, 616 (Alaska App. 2021); Alaska R.
Crim. P. 6(s)(1) ("Except as stated in [other parts of the Rule], hearsay evidence shall
not be presented to the grand jury absent compelling justification for its introduction.").
32 See Alaska R. Crim. P. 6(s)(1).
- 37 - 7740
----------------------- Page 38-----------------------
C. The Recorded Statement Was Not Admissible Under Criminal Rule
6(s)(1).
The court's opinion focuses not on the text of Evidence Rule 801(d)(3)
but instead on Criminal Rule 6(s)(1), which allows the State to present to a grand jury
any evidence that "would be legally admissible at trial."33 This language presents a
practical dilemma: The decision about whether to admit evidence is ordinarily made
by a judge, but there is no judge present at a grand jury proceeding.34 Without a judge
present, how is the State expected to determine what evidence "would be legally
admissible at trial" when making its case to the grand jury? The court concludes that
Rule 6(s)(1)'s conditional phrase "would be" is forward-looking, meaning that it calls
for predictions about what foundational facts the State might be able to establish and
what a judge might decide at a hypothetical future trial. I respectfully disagree.
I cannot accept the court's conclusion that Rule 6(s)(1) has a single plain
meaning that is forward-looking. The reference to "[e]vidence which would be legally
admissible at trial" is ambiguous, leaving a significant role for consideration of the
history and purpose of Rule 6(s)(1) under our "sliding scale" approach to the
interpretation of court rules.35 The history and purpose of Rule 6(s)(1) and our related
precedent all support the conclusion that the first clause of the Rule focuses on the
reliability of evidence as measured at the time of the grand jury proceeding and
therefore allows the State to present evidence that would be admissible under the
hearsay rules applied at that time. The recorded statement at issue in this case did not
satisfy this standard and should not have been presented to the grand jury.
33 Alaska R. Crim. P. 6(s)(1).
34 See Alaska R. Crim P. 6(l).
35 See Off. of Pub. Advoc. v. Superior Ct., 462 P.3d 1000, 1005 (Alaska
2020) ("We use a sliding scale: 'the plainer the statutory language is, the more
convincing the evidence of contrary legislative purpose or intent must be.' " (quoting
Alaska Tr., LLC v. Bachmeier , 332 P.3d 1, 7 (Alaska 2014))).
- 38 - 7740
----------------------- Page 39-----------------------
1. Criminal Rule 6(s)(1) is ambiguous and should be interpreted
in light of its history and purpose.
As the court acknowledges, "would" has a variety of meanings when used
as an auxiliary verb, as it is in Criminal Rule 6(s)(1). "Would" sometimes expresses an
intention or prediction about the future, as in the sentence, "I would try to admit that
evidence again later."36 The court adopts this forward-looking sense of "would." But
"would" can also express a contingency or imagined alternative in the present, as in a
37
sentence like, "That evidence would be admissible in federal court."
Notably, the Alaska Administrative Procedure Act uses the phrase "would
be admissible" in this present conditional sense when describing the rules of evidence
that apply to agency adjudicative proceedings, providing that hearsay evidence "is not
sufficient by itself to support a finding unless it would be admissible over objection in
a civil action."38 In this statute, context makes clear that deciding what "would be
admissible" requires considering what evidence would be admissible under the hearsay
rules applied at the time of the agency proceeding - that is, what is admissible at the
administrative hearing - rather than predicting what will happen in some future "civil
36 See, e.g., Would, WEBSTER 'S THIRD NEW INTERNATIONAL DICTIONARY
(3d ed. 2002) ("2. . . . used in auxiliary function to express plan or intention . . . .").
37 See, e.g., id. ("6. . . . used in auxiliary function to express probability or
presumption in past or present time"); see also Would, THE AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE (5th ed. 2011) ("5. Used in the main clause
of a conditional statement to express a possibility or likelihood . . . . 6. Used to express
presumption or expectation . . . ."); Would, NEW OXFORD AMERICAN DICTIONARY (3d
ed. 2010) ("2. (expressing the conditional mood) indicating the consequence of an
imagined event or situation . . . . 5. expressing a conjecture, opinion, or hope . . . .").
38 AS 44.62.460(d); see, e.g., Alaska R. Civ. P. 27(a)(4); Alaska R.
Evid. 609(e), 806; Alaska Bar R. 7(4); cf. Strickland v. Washington, 466 U.S. 668, 694
(1984) (holding that showing of prejudice in ineffective assistance of counsel claims
requires "a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different," using another, non-forward-
looking sense of "would" (emphasis added)).
- 39 - 7740
----------------------- Page 40-----------------------
action." Applying this same present conditional sense of "would" in interpreting
Rule 6(s)(1) leads to the conclusion that evidence is presently admissible at the grand
jury proceeding to the same extent it would be admissible if the grand jury proceeding
was a hypothetical trial.
Nothing in the text of Criminal Rule 6(s)(1) makes plain that "would" is
used in the forward-looking sense, rather than the present conditional sense. In fact,
the second sentence of Rule 6(s)(1) counsels against the forward-looking interpretation.
The second sentence refers to admissible evidence that "will be available at trial,"
demonstrating that when we drafted Rule 6(s)(1), we understood how to refer
unambiguously to an anticipated future condition in this context.39 It is reasonable to
infer that the choice to use different words in the first and second sentences reflected an
40
intent to convey different meanings.
Because the phrase "would be legally admissible at trial" has at least two
plausible meanings, the interpretation that is more consistent with the history and
purpose of Criminal Rule 6(s)(1) should control.
2. The history and purpose of Criminal Rule 6(s)(1) favor an
interpretation that is not forward-looking.
As I read the history of Criminal Rule (6)(s)(1), its primary purpose was
to reduce the risk of indictments based on evidence that "lacks sufficient reliability" to
form the basis for a criminal prosecution.41 Because that purpose is best served by
focusing on the reliability of the evidence as measured at the time of the grand jury
39 Alaska R. Crim. P. 6(s)(1) (emphasis added).
40 See Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783, 1789 (2022) ("[W]here [a]
document has used one term in one place, and a materially different term in another,
the presumption is that the different term denotes a different idea." (alterations in
original) (quoting ANTONIN SCALIA & BRIAN GARNER, READING LAW : THE
INTERPRETATION OF LEGAL TEXTS 170 (2012))).
41 See Taggard v. State, 500 P.2d 238, 243 (Alaska 1972), disapproved of on
other grounds by McCracken v. Corey , 612 P.2d 990, 992 n.6 (Alaska 1980).
- 40 - 7740
----------------------- Page 41-----------------------
proceeding, and not by a prediction about what foundational facts may be provable at a
hypothetical future trial, I disagree with the court's conclusion that Rule 6(s)(1) is
"forward-looking."
As the court recognizes, we steadily narrowed the circumstances under
which hearsay evidence may be presented to the grand jury in a series of decisions
leading up to the adoption of Rule 6(s).42 In so doing, we adopted higher standards than
those required by the federal constitution, which allows indictments to rest on hearsay
alone, no matter how unreliable.43 We explained that these higher standards are rooted
in the right, under Alaska's Constitution, to an indictment by a grand jury,44 which
42 See State v. Parks, 437 P.2d 642, 644-45 (Alaska 1968) (holding
indictment is subject to dismissal if "no evidence was presented to the grand jury that
rationally established the facts," but that "hearsay evidence may rationally establish
facts and therefore may be sufficient evidence to justify the findings of an indictment");
Burkholder v. State, 491 P.2d 754, 758 (Alaska 1971) (holding that hearsay without
indicia of reliability cannot "rationally establish facts" sufficient to support indictment);
Taggard, 500 P.2d at 242-43 (laying out "two-step analysis" for challenges to
indictments based on hearsay in which courts must first determine whether "the
evidence presented a sufficiently detailed account of criminal activity and the
defendant's participation in this activity" that, if uncontradicted, would warrant
conviction, and second, "determine whether the credibility of the informant has been
sufficiently established so that the grand jury may know how much weight to give to
the hearsay testimony"); see also State v. Skan, 511 P.2d 1296, 1297 (Alaska 1973)
(affirming dismissal of indictment based on Taggard two-step analysis).
43 Compare Parks, 437 P.2d at 644, Burkholder, 491 P.2d at 758, and
Taggard, 500 P.2d at 242-43, with Costello v. United States, 350 U.S. 359, 363 (1956)
(holding Fifth Amendment to United States Constitution does not prohibit indictments
based on "inadequate or incompetent evidence"); see also Wassillie v. State, 411 P.3d
595, 608 & n.89 (Alaska 2018) (noting Alaska's standards are "atypically strict"
compared with those applied by federal courts and courts of other states).
44 Alaska Const. art. I, § 8.
- 41 - 7740
----------------------- Page 42-----------------------
guarantees a measure of "protection of the innocent against oppression and unjust
prosecution."45
The clear trend of these decisions was toward limiting the presentation of
hearsay to the grand jury. And as the court recognizes, our focus in each of these
decisions "was not on whether the evidence would later be admissible at trial, but
whether it was sufficiently reliable to support a reasoned decision about the likelihood
of the accused being found guilty at a future criminal trial." This emphasis focuses on
the reliability of the evidence as measured at the time of the grand jury proceeding, not
a forward-looking prediction about what foundation the State may be able to lay at a
future trial.
Against that backdrop, we adopted the rule that became Criminal
Rule 6(s)(1) based in part on a section of a 1971 standard published by the American
Bar Association (ABA).46 The commentary to that section acknowledges that it lays
out a more defendant-protective rule than some courts require.47 Consistent with that
45 Parks, 437 P.2d at 643 (quoting State v. Shelton, 368 P.2d 817, 819
(Alaska 1962)); see also Burkholder, 491 P.2d at 757 (noting "the protective value of
the constitutional right to a grand jury indictment").
46 See Alaska Supreme Court Order No. 157 (Jan. 22, 1973); State v.
Gieffels, 554 P.2d 460, 463 (Alaska 1976) (noting source of rule); AM. BAR ASS'N
PROJECT ON STANDARDS FOR CRIM. JUST., STANDARDS RELATING TO THE
PROSECUTION FUNCTION AND THE DEFENSE FUNCTION § 3.6(a), at 88 (Approved Draft
1971) (hereinafter ABA STANDARDS) ("A prosecutor should present to the grand jury
only evidence which he believes would be admissible at trial. However, in appropriate
cases the prosecutor may present witnesses to summarize admissible evidence available
to him which he believes he will be able to present at trial."); see also Coger v. State,
517 P.2d 1403, 1406 n.5 (Alaska 1974) (describing Section 3.6(a) of ABA Standards
as having been "adopted" in Taggard, 500 P.2d at 242 n.14, and Burkholder, 491 P.2d
at 758 n.14).
47 See ABA STANDARDS, supra note 46, § 3.6 cmt., at 89 ("As a general
principle, the use of secondary evidence before a grand jury should be avoided unless
- 42 - 7740
----------------------- Page 43-----------------------
approach, the commentary to the preceding section of the same ABA standard asserts
that when presenting to a grand jury, "[the prosecutor] should be guided by the
standards governing and defining the proper presentation of the state's case in an
adversary trial before a petit jury."48 The first sentence of the standard we relied upon
in crafting our new rule then states, "A prosecutor should present to the grand jury only
evidence which he believes would be admissible at trial."49 Then, like the second
sentence of Rule 6(s)(1), the ABA standard uses the word "will," rather than "would,"
when making conditional references to the future.50 The different word choice in the
later parts of the standard supports an inference that the word "would," when referring
to evidence that "would be admissible at trial," has a different meaning that is not
forward-looking.51 While the standard contains essentially the same ambiguity as
Rule 6(s)(1), it appears to have focused - much like our earlier decisions - on the
reliability of evidence as measured at the time of the grand jury proceeding, not on a
forecast of its potential future reliability at the time of trial.
there are cogent reasons justifying the presentation of a matter on the basis of such
evidence. On the other hand, some jurisdictions allow an indictment to rest on evidence
which would not be admissible at trial, e.g., Costello v. United States, 350 U.S. 359
(1956)."); see also Gieffels, 554 P.2d at 463 (recognizing commentary to these
standards as persuasive authority).
48 ABA STANDARDS, supra note 46, § 3.5 cmt., at 88.
49 Id. § 3.6(a), at 88.
50 See id. ("[I]n appropriate cases the prosecutor may present witnesses to
summarize admissible evidence available to him which he believes he will be able to
present at trial." (emphasis added)); id. § 3.6(b) ("The prosecutor should disclose to the
grand jury any evidence which he knows will tend to negate guilt." (emphasis added));
id. § 3.6(e) ("The prosecutor should not compel the appearance of a witness whose
activities are the subject of the inquiry if the witness states in advance that if called he
will exercise his constitutional privilege not to testify." (emphasis added)).
51 See Sw. Airlines Co. v. Saxon, 596 U.S. 450, 458-59 (2022).
- 43 - 7740
----------------------- Page 44-----------------------
This history suggests that Rule 6(s)(1) codified an evolution away from
the unrestricted presentation of hearsay to the grand jury and toward more trial-like
rules designed to ensure the reliability of evidence presented. I agree with the court that
the evident purpose of Rule 6(s)(1) was not "to exclude all hearsay." That much is
apparent from the fact that Rule 6(s)(1) has always allowed hearsay when the State can
show a "compelling justification" for its use.52 However, in my view, the history shows
that Rule 6(s)(1) was clearly intended to limit the use of hearsay in favor of more
reliable forms of evidence when no such justification is offered.
Based on the history and purpose of Criminal Rule 6(s), I would not
interpret Rule 6(s)(1) to be forward-looking. Instead, I would read the first clause of
Rule (6)(s)(1) to focus on the reliability of evidence as measured at the time of the grand
jury proceeding , and therefore allow the State to present only evidence that would be
admissible under the hearsay rules applied at that time.
3. Our precedent does not require a forward-looking reading of
Criminal Rule 6(s)(1).
I disagree with the court's conclusion that our prior decisions have
implicitly assumed or adopted a forward-looking interpretation of Criminal
Rule 6(s)(1). Each of the decisions the court cites is consistent with an interpretation
that focuses on the reliability of hearsay evidence at the time of the grand jury
53
proceeding.
The court warns that a reading of Rule 6(s)(1) that focuses on whether the
State satisfied foundational requirements at the time of the grand jury proceeding would
lead to "absurd results," including disallowing the presentation of scientific and
52 See Alaska Supreme Court Order No. 157 (Jan. 22, 1973).
53 See State v. Coon, 974 P.2d 386, 394-95 (Alaska 1999), abrogated on
other grounds by State v. Sharpe, 435 P.3d 887, 899-900 (Alaska 2019); Bingaman v.
State, 76 P.3d 398, 416 (Alaska App. 2003); State v. Nollner, 749 P.2d 905, 908 (Alaska
App. 1988); Wassillie v. State, 411 P.3d 595, 601-04 (Alaska 2018).
- 44 - 7740
----------------------- Page 45-----------------------
character evidence to the grand jury. It suggests that, under our decision in State v.
Coon,54 scientific evidence is not "admissible" until a trial judge has evaluated its
accuracy and reliability. Similarly, the court suggests that, under the court of appeals'
decision in Bingaman v. State,55 character evidence is not "admissible" until a trial
judge has conducted a balancing inquiry under Evidence Rule 403 and explained its
reasoning on the record. It concludes that focusing on the foundation laid for evidence
at the time of the grand jury proceeding could exclude from the grand jury's
consideration "all evidence requiring an adversarial hearing and judicial decision on its
admissibility before it is introduced at trial."
I disagree with the court's analysis for several reasons. First, Rule 6(s)
specifically prohibits the presentation of most hearsay at grand jury,56 and neither Coon
nor Bingaman dealt with hearsay evidence.57 There is no comparable rule limiting the
presentation of scientific or character evidence to the grand jury. The established
practice of presenting scientific and character evidence to the grand jury therefore does
not tell us whether the State should also be allowed to present hearsay evidence under
similar circumstances.
Second, Coon and Bingaman describe the procedures that must be
followed before evidence may be admitted at trial; they do not create new foundational
requirements for admissibility that only a judge can satisfy.58 Although Bingaman
54 974 P.2d 386.
55 76 P.3d 398.
56 See Alaska R. Crim. P. 6(s)(1) (providing that unless exception applies,
"hearsay evidence shall not be presented to the grand jury absent compelling
justification for its introduction ").
57 See Coon, 974 P.2d at 394-95; Bingaman, 76 P.3d at 416.
58 See Coon, 974 P.2d at 394-95; Bingaman, 76 P.3d at 416.
- 45 - 7740
----------------------- Page 46-----------------------
requires trial judges to explain their reasoning on the record,59 I would interpret this
requirement as a judge-made procedural device designed to facilitate appellate review,
not a standalone foundational requirement that prevents evidence from being
"admissible" until the court has articulated its reasoning.
Third, a forward-looking reading of Rule 6(s)(1) is not necessary to avoid
the "absurd results" the court warns against. As the court of appeals correctly held in
State v. Nollner, and as the court today agrees, the State may present evidence to a grand
jury when it reasonably believes "in good faith" that a judge would resolve any legal
questions about admissibility in its favor and admit the evidence at issue.60 A
prosecutor therefore has a duty to lay the proper foundation regarding the reliability and
relevance of a scientific theory or technique before presenting scientific evidence to the
grand jury. Similarly, a prosecutor must consider the prejudicial effect of any character
evidence and refrain from presenting any evidence that would be substantially more
prejudicial than probative. These inquiries do not need to be focused on how a judge
will rule at a future trial. Instead, I would hold that they turn on an assessment of what
a hypothetical trial judge would decide if that judge was applying the hearsay rules at
the time of the grand jury proceeding.
Interpreting our precedent in this way would not impede the State's ability
to present scientific and character evidence at grand jury. It would also be consistent
with litigants' ability to present expert testimony and character evidence in
administrative adjudications and other proceedings where the rules refer to evidence
that "would be admissible" at a trial, but that do not include an actual trial as a routine
stage of the proceedings.61 If the court were correct that these kinds of evidence are not
"admissible" until a judge has completed the required preliminary inquiries under Coon
59 Bingaman, 76 P.3d at 416.
60 See State v. Nollner, 749 P.2d 905, 908 (Alaska App. 1988).
61 See, e.g., AS 44.62.460(d); Alaska Bar R. 7(4).
- 46 - 7740
----------------------- Page 47-----------------------
and Bingaman, then there would be no way to present such evidence under procedural
rules that clearly refer to admissibility at a hypothetical trial, not a future one.62
Adopting the Nollner approach and treating evidence as "admissible" when a party has
a reasonable, good-faith belief that a judge would admit the evidence at the time it is
63
offered at grand jury would avoid that problem.
Finally, I disagree with the court's suggestion that our decision in
64
Wassillie v. State implicitly adopted a forward-looking interpretation of Rule 6(s)(1).
As the court recognizes, the hearsay evidence at issue in Wassillie "could never meet
the business records exception to hearsay at trial."65 That meant that it would not be
admissible at a hypothetical future trial, but it necessarily also meant that it would not
have been admissible under the hearsay rules applied at the time of the grand jury
proceeding.66 Our analysis in Wassillie also focused on whether the evidence was
admissible as a business record, not whether it would be admissible at a future trial,
without grappling with the ambiguity in Rule 6(s)(1) that is at issue in this case.67 I
therefore do not think Wassillie provides persuasive authority for a forward-looking
interpretation of the Rule.
In sum, I conclude that our rules at the time of the grand jury proceeding
at issue in this case did not allow the presentation of recorded statements to the grand
jury under Evidence Rule 801(d)(3).
62 Cf. AS 44.62.460(d); Alaska Bar R. 7(4).
63 See Nollner, 749 P.2d at 908.
64 See Wassillie v. State, 411 P.3d 595, 604 (Alaska 2018).
65 See id.
66 See id.
67 See id. at 601-04.
- 47 - 7740
----------------------- Page 48-----------------------
CONCLUSION
Because I agree with the court of appeals' interpretation of the rules that
apply in this case, I respectfully dissent.
- 48 - 7740
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
