NCJ Number
112860
Journal
Alaska Law Review Volume: 5 Issue: 1 Dated: (June 1988) Pages: 193-220
Date Published
1988
Length
28 pages
Annotation
Evidence of prior bad acts, when intended by the prosecution to establish a general disposition or propensity for criminal activity, is ordinarily inadmissible under Alaska Rule of Evidence 404(b).
Abstract
In Soper v. State, a child sexual abuse case, the court admitted testimony by the defendant's daughters on his prior, uncharged incest. The appeals court upheld the lower court's evidentiary ruling on the grounds that evidence of prior sexual assaults on similar victims fell under the lewd disposition exception to the exclusionary rule and that the probative relevance of such evidence outweighed its prejudicial impact under the balancing test of Rule 403. In Soper, the court's decision represents an emerging double standard in determining admissibility of prior bad acts in sexual abuse cases, especially those involving children. The decision reintroduces the concept of propensity into the framework of Rule 404(b) and represents a failure of the court to consider fully the harmful effects inherent in evidence of bad acts. It is argued that the courts should strive to apply existing evidentiary rules more uniformly, despite the difficulties prosecutors face in child molestation cases. It is suggested that the lewd disposition exception should be severely limited and that a thorough balancing test should be applied lest the evidentiary rules lose their intended effectiveness in other situations. 216 footnotes.