CRIMINAL LAW
Mary Beth Barksdale
In State v. Powell, 487 P.3d 609 (Alaska Ct. App. 2021), the court of appeals held that a video of a forensic interview of a victim in a child sexual abuse and controlled substance case was inadmissible evidence as presented to a grand jury because the grand jury format was not covered by the Evidence Rules did not allow for cross-examination – one of the requirements to admit evidence that would otherwise be hearsay under Alaska’s Evidence Rule 801(d)(3)(B). (Id. at 610–11). In its presentation to the grand jury on the indictment of Harry Powell, the State introduced a video of the forensic interview with the 14-year-old victim, but did not call the victim as a witness. (Id. at 610). The superior court found that this presentation violated Alaska’s hearsay rules because Evidence Rule 801 “contemplates a cross-examination contemporaneous to the introduction of the recording” to qualify evidence for the hearsay exception. (Id.). The trial court further clarified that the victim here did not qualify for separate grand jury hearsay exceptions in Criminal Rule 6(r)(2) because the victim was over ten years old. (Id. at 610–11). The trial court therefore dismissed both counts against Powell, citing legislative history suggesting that the hearsay exceptions depend on the witness’s availability to testify. (Id. at 611). The court of appeals agreed with the superior court because the plain language of Evidence Rule 801(d)(3) – which excepts video statements of victims under sixteen – sets forth clear foundational requirements to find evidence admissible. (Id. at 611). The video recording here did not meet three of the eight requirements at the time of the grand jury presentation. (Id. at 611–12). The court concluded that while the legislative history showed that Rule 801(d)(3) was not intended to apply to grand juries, the lack of amendment to the grand jury rules that would have allowed child hearsay implied that no such protection for child victims existed at the grand jury stage. (Id. at 614–15). The court of appeals therefore held that a video of a forensic interview of a victim in a child sexual abuse and controlled substance case was inadmissible evidence as presented to a grand jury because the grand jury format was not covered by the Evidence Rules and did not allow for cross-examination – one of the requirements to admit evidence that would otherwise be hearsay under Alaska’s Evidence Rule 801(d)(3)(B). (Id. at 610–11).