Alaska Rules of Evidence Commentary

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It is unfortunate that the «truth» does not always prevail in the process, despite rigorous cross-examination. If that were the case, no innocent person would be convicted. However, the Innocence Project reports that there have been 325 post-conviction DNA exemptions in the United States since 1989. Twenty people had been sentenced to death before DNA proved their innocence and led to their release. In nearly 50% of DNA exemption cases, the actual perpetrator was identified by subsequent DNA testing. ( The vast majority of prosecutions do not include DNA evidence, but the same factors that led to the false conviction of DNA exemptions are present in many other cases – eyewitness misidentification, invalid or inappropriate forensic science, overzealous police and prosecutors, and incompetent defense lawyers. The likely number of false convictions is staggering. Van Brocklin explains, without elaborating, that «there are Alaskan rules of evidence and jurisprudence that prohibit jurors from hearing certain relevant and truthful evidence.» She goes on to explain that defense lawyers «regularly argue these rules to hide such evidence from jurors,» as if defense lawyers were somehow deceiving jurors instead of doing their job by asking questions about the correct application of the law. In fact, the rules of evidence in Alaska prevent the introduction of relevant evidence «if its probative value is outweighed by the risk of unjust harm, confusion of questions or misleading the jury, or by considerations of unreasonable delay, loss of time, or unnecessary submission of cumulative evidence.» (Rule 403 of Alaska`s evidence.) The rules also generally prohibit the introduction of illegally obtained evidence, such as when police interrogate a citizen in violation of the Miranda Rule, or improperly search or seize people or property in violation of the Fourth Amendment.

(Rule 412 of Alaska`s evidence.) Ultimately, however, it is the trial judge, not the defense lawyer, who decides whether or not to present certain evidence to the jury. In a Feb. 7 editorial in the Alaska Dispatch News titled «The Lawyer Doesn`t Tell the Whole Story,» Van Brocklin criticizes two stories by Marcelle McDannel, a regular DNA employee, about the role of «truth» in court. The views expressed here are those of the author and are not necessarily supported by Alaska Dispatch News, which welcomes a wide range of views. To submit an article for review, email commentary(at) In his DNA commentary, Van Brocklin also criticizes the National Association of Criminal Defense Lawyers, saying the association`s website «holds that a criminal trial is not about the truth and urges its members to challenge any jury instruction that suggests it.» Van Brocklin is probably not a member of the NACDL, which excludes prosecutors from membership, and therefore does not have access to their full website. To put the NACDL article in context, it must be remembered that among the most fundamental principles of U.S. criminal justice, as reflected in the proper procedural clause of the U.S.

Constitution, are the presumption of innocence and the burden of proof of state guilt beyond a reasonable doubt in trial. The NACDL article addresses this concept by stating that the U.S. Supreme Court ruled that «it is important that jury instructions ensure that jurors understand this.» The question in the criminal proceedings is not whether the defendant committed the acts of which he is accused. The question is whether the government has shouldered its burden of proof for its claims. (Mitchell v. United States (1999). Darrel J. Gardner was born and raised in Anchorage and was admitted to the Alaskan Bar in 1983. He is an Assistant Federal Advocate. He is the former president and founding director of the Alaska Association of Criminal Defense Layers, past president of the Alaska Chapter of the Federal Bar Association, legal counsel to the Ninth Circuit Judicial Conference, and current member of the Board of Governors of the Alaska Bar Association. This comment is his personal opinion. Judge Darrel Gardner is an assistant federal defense attorney in Anchorage.

Van Brocklin is a former prosecutor and current law enforcement coach. In an article for, she trains police in techniques to «successfully testify in court and win confrontations in the courtroom.» The article does not focus on the truth, but advises officials on how to dress, make an appearance, take the oath, and appear credible and convincing to the jury. The article acknowledges that law enforcement officers are not neutral witnesses because Van Brocklin warns officers to «resist the temptation» to «add to your response information that you believe will help move the prosecutor`s case forward.» Van Brocklin, however, is right when she says that «DNA readers deserve balanced reporting and opinions from which to form their own opinion about their criminal justice system.» I can only agree with that.