Overview of the Criminal Procedures in Alaska
The Alaska Rules of Criminal Procedure (ARCP) establish the framework of laws and guidelines which govern the handling of criminal proceedings in the state of Alaska. The rules set forth the basic procedures for the prosecution of a person accused of a crime, providing structure and guidance to the judicial process. They are designed to ensure that the rights of the accused are protected while also balancing the swift and efficient administration of justice. Every aspect of criminal procedure in Alaska is governed by these rules , from the filing of criminal charges through arraignment, bail, preliminary hearings, and beyond. The Alaska Constitution, statutes, and decisional law provide the legal foundation for the rules, establishing their place within the state’s broader legal standards. For the practicing Bar and the public at large, the Alaska rules of criminal procedure serve as a vital reference to guide and inform the proper conduct of criminal proceedings throughout the state.
Criminal Proceedings: The Process of Commencement
The commencement of criminal proceedings in Alaska is a pivotal step in the state’s judicial process. Alaska Rules of Criminal Procedure (ARCP) Rules 3 through 11 provide a comprehensive framework for how these proceedings advance from a mere allegation of criminal conduct to a process that, in many cases, will determine whether an individual is put on trial.
The start of a criminal case in Alaska frequently occurs when a written order known as a complaint is either filed or "presented" to the appropriate magistrate. A magistrate is an impartial court official who has the authority to conduct preliminary proceedings in a criminal charge. Any government official authorized by Alaska law can file a complaint, though nearly all such documents are created by law enforcement officers. The contents of the complaint include a specification of the offense being charged as well as the name of the individual being charged, the date of the charge, the signature of a complainant and, if applicable, the signature of a district attorney or magistrate. The complaint is also required to include a citation of the relevant statute. In addition to complaints, an arrest warrant can also commence a criminal proceeding. For a warrant to be issued, it must be found by a magistrate that there are "reasonable grounds" to believe that the individual named in the warrant has committed the criminal offense listed within that warrant. If the individual named in the warrant fails to appear at any scheduled proceeding, the designated magistrate may issue a bench warrant for his or her arrest. Arrest warrants are not issued for misdemeanor charges unless those charges are a direct result of a violation of a protective order. Bail can also be set by a magistrate. An accused individual who is charged with felony-level offenses generally has their bail set by a magistrate. In other charges, judges are authorized to set bail if a magistrate is not available to do so. If a defendant is charged with multiple offenses, general provisions require bail for those offenses to be set at a sufficient amount to insure that the defendant does not flee the jurisdiction of the court and that the defendant appears at every hearing. In Alaska, certain things must happen at the first appearance. During that first appearance, the defendant is asked if he or she wishes to be represented by a lawyer. If the defendant cannot afford a lawyer, the court appoints one to him or her free of charge. The amount of the bail is also reviewed at the first appearance, with a magistrate or judge doing so. At these initial proceedings, the judge or magistrate will also inform the defendant of the charges against him or her, tell them the potential penalties of being convicted of those offenses, formally propose and assess bail, provide him or her with a copy of the charge against him or her, review their rights, tell him or her how long they can remain in jail prior to trial and, if applicable, schedule a preliminary hearing. There is an exemption to the first appearance requirement related to defendants who are in police custody. Various statutes govern the officers, including magistrates, who preside over a preliminary hearing. Preliminary hearings are held to determine whether there is enough evidence to believe that a crime has been committed and that the person charged with it more than likely committed the offense. This means that prosecutors do not need to provide the same level of evidence at the preliminary hearing as they would at a trial. Once the preliminary hearing is held, a magistrate must determine whether there is probable cause to believe that a defendant committed the alleged crime and, if so, whether that defendant should be held to answer to a trial jury.
Criminal Preliminaries: Preliminary Hearing and Arraignment
The preliminary hearing occurs within thirty (30) days after the filing of the complaint. The State must show that their evidence "probably" shows that a crime was committed and that the defendant "probably" committed the crime. Thereafter, the District Court Judge decides whether to "bind over" the case to the Superior Court. The essence of a preliminary hearing is that the State must have enough evidence to support the criminal charge. If the State does not have enough evidence, then the case collapses, and you are free to go.
For example, if a complaint alleges that on January 1, 2015, you did "assault" Mary Jones, and the preliminary hearing testimony only establishes that on February 1, 2015, you were in an argument with Mary Jones, then nothing happened – the case should be dropped.
At arraignment, the Judge appoints the Public Defender or private attorney. The Judge gives the case number and charges filed with the District Court. The Judge reads the charges – the specific Alaska Statute(s) alleged and states how many counts (number of criminal offenses) were filed against the defendant.
The Judge instructs the defendant how to enter a plea. The Judge advises the defendant of rights. The Judge needs to know whether the defendant desires a jury trial or a court trial. The Judge sets a trial date and certain pretrial deadlines.
The Judge also asks if there are any conditions of release such as a no contact order, GPS monitoring, curfew, drug and alcohol testing, or anything else dealing with the defendant’s release after the arraignment and the District Court’s decision. The Judge sets all these dates and conditions because the District Court is the initial court in your case. A County Prosecutor prosecutes the case. The District Court is the "home court." After it’s all done, if there is a conviction of a felony, the District Court will reallocate the case to the Superior Court for sentencing.
In most cases, the arraignment and preliminary hearing proceedings are not a good time for the defendant to sit down face-to-face with the judge and the prosecutor. In most cases, the District Court is simply scheduling future hearings and dates. However, if you wish to speak with the judge, the judge will want to hear what you have to say.
Keep in mind, that the event that the judge does hear something from the defendant, the judge will notify the assigned Assistant District Attorney, and the public defender or private defense attorney that they need to address the defendant’s statements.
Preliminary hearings and arraignments are likely the only times the defendant is in the District Court. After the arraignment, the next action is the entry of a plea of guilty or no contest or proceeding to a jury trial or a court trial. This is the time to challenge the evidence and the state’s case. The defense lawyer can attack the preliminary hearing evidence through a motion to suppress the evidence or a motion to dismiss.
Bail and Pretrial Release in the State of Alaska
One area where the Alaska Rules of Criminal Procedure differ from counterpart federal rules is in regard to setting bail and conditions of pretrial release. The federal rules provide for a 2-day detention hearing after an arrest for a serious offense, but the Alaska rules provide for a much longer potential time between the arrest and the hearing, which can be used for various investigations, including mental health or substance abuse evaluations. In Alaska, there is no specific 48-hour time limit for the detention hearing. Rather, the time limit is triggered once a request for expedited review is made under Criminal Rule 5.1(b). Other than that, judges will schedule a bail review hearing as soon as practicable. The Alaska Supreme Court has held that "as a general rule, bail is to be allowed rather than denied." State v. Anderson, 599 P.2d 700, 705 (Alaska 1979). Further, "the requirements for release on bail are minimal. Indeed, a court may impose appearance conditions only when such conditions are ‘necessary to [ensure] the appearance of the person as required.’ " State, Department of Corrections v. Koehler, 822 P.2d 1381, 1383 (Alaska App. 1991) (quoting AS 12.30.020). The rules specifically anticipate substantial input by defense counsel into the conditions of release. Criminal Rule 5.1(d) provides that in determining conditions of release, the court "shall consult with defense counsel." In practice, this does not mean that defense counsel has any right to be present at the scheduling of the hearing or that the hearing is anything like a trial. It is more of an administrative process. The goal is to assess and alter the conditions as necessary to secure the defendant’s future appearance and to provide for the safety of the alleged victim and others. In the cases we have worked on, typically the judge, prosecutor, and defense counsel all work together to formulate the final conditions of release. If the defendant can be reached by telephone, we will usually call him or her so that he or she can agree or disagree to the proposed conditions of release over the phone. Sometimes defendants do appear at the hearing, particularly if they may want to resolve the case by plea agreement before it goes to the first appearance hearing. Of course, bail is also a factor to be determined at the very first appearance hearing, without any prior consultation with counsel. In most cases, courts will set conditions of pretrial release in addition to setting bail. The conditions may actually be quite extensive, depending on the type of offense charged and the nature of the prior record. There are two basic types of bail, unsecured and secured. With secured bail, a fixed amount must be paid by the defendant or the bondsman, who will be responsible for paying the bail if the defendant fails to appear. Unsecured bail is basically nothing more than a promise to return to court. It usually is not a money bond, because the purpose of bail is to encourage the person to return to court, not to raise money for the court if he doesn’t. This is sometimes a source of confusion for defendants, particularly if they have been previously arrested by another state and released on unsecured bail, because in many places other than Alaska, bail is primarily a commercial enterprise. In Alaska, the courts do not charge for bail or, for that matter, for most services. The exception, of course, is if a defendant decides to hire a bail bondsman, and very few criminal defense attorneys get involved with that aspect of criminal representation. Unlike civil cases, which have numerous rules governing the government’s actions in regard to disclosure and other aspects of the pretrial process, the defense in a criminal case has no access to the State’s evidence, witness statements, or even the name of witnesses, until a demand for discovery is made under Alaska Criminal Rule 16. If a statement of the defendant is in the possession of the prosecutor, or at least the law enforcement agency, a demand for discovery will usually be met with a confession of judgment and a very large bail increase. Otherwise, the parties can continue to discuss the case informally and informally exchange information such as ACR 16 size documents with copies of police reports and Ketchikan Reports.
Trial and Jury Selection for Criminal Cases Under Alaska Law
In addition to the Supreme Court’s Alaska Criminal Rules applicable in all Alaska state courts, the Administrative Rules of the Alaska Court System contain additional provisions that apply to many district and municipal courts. Even before an Alaska trial begins there are often pretrial hearings that decide important motions, particularly those concerning discovery and early objections to the state’s evidence before trial. In addition, hearings like arraignments (to answer the charges formally) and remands (to decide whether the defendant will be detained or released pending trial) can occur. Alaska also has preliminary hearings to determine whether probable cause exists for a defendant to be held for trial. These often occur when the defendant and prosecutor disagree on the terms of violations of probation , which often results in a revocation hearing. With limited exception such as capital crimes, the defendant has the option of waiving the preliminary hearing. Criminal jury trials in Alaska state court must be unanimous, and all members of the qualified jury must be present for a verdict to be reached. In some other states a judge may declare a mistrial if only one member of the jury is missing, but Alaska requires the presence of all qualified jurors. During trial, jurors may submit questions even though they do not participate in the courtroom. It is the duty of the judge to determine the appropriateness of the question and rephrase it. Verdicts in an Alaska jury trial must be unanimous art. 6, Sec 8, Alaska Constitution. In a non-jury (called a "court") trial the trial court decides all issues of fact (in addition to deciding all the issues of law).
Sentencing and Related Post Conviction Procedures
Upon conviction, persons have the following rights: (1) a right to an attorney at public expense if they go to prison and cannot afford to pay a lawyer; (2) a right to advance notice of sentencing (at least five days) and to be present at the sentencing unless they personally waive that right; and (3) a right to present mitigating evidence in favor of leniency. Alaska has very specific sentencing statutes for numerous crimes. In general, sentencing is discretionary, but there are various statutory minimums. For some crimes there is an Alaska statute with minimum and maximum sentences. Some are Felony Class C—rigging (AS 11.81.900 (Aji)) or a class A Felony (assault with a dangerous weapon (AS 11.41.220(a)(1)) based on a presumptive term and parole classification, and other terms. Other crimes have a presumptive sentence, but no parole eligibility or parole presumptions based on a pre-sentencing study and other aggravating and mitigations factors. For example the presumptive sentence may be either 4, 5, or 6 years depending on the Parole Board’s timetable for time spent incarcerated compared to the sentences mentioned above. In addition to the presumptive sentence, the judge may restrict or defer execution of the sentence. The judge can also order probation in some cases for crimes like robbery if the offender has never been convicted of a felony before. In less serious crimes (Class 1, 2, or 3 misdemeanors) the judge may suspend the sentence in a case where a longer sentence would present a higher or different risk to the community. Repeat Felons or persons with three Class A Felony convictions may not be granted suspension of the sentence. As a general rule, the judge may consider a prior Crime in Alaska (called an "Alaska Offense") but may not consider a prior crime from another state unless the crime committed in the that state would be a crime in Alaska (See AS 12.55.155). A sentence appeal may be filed if the judge makes a mistake under the law or abuse his/her discretion in determining the sentence based on the motions or arguments presented. Mechanisms to file the appeal include a petition for rehearing under Rule 32 that must be filed within 60 days after sentencing. Finally, persons can file for post-conviction relief under Criminal Rule 35. These petitions must be filed within one year of sentencing or discovery of the conviction or other post-conviction errors. On the other hand, these motions are not favored by the court system and particularly the appellate courts. For example a motion for reconsideration of a prior sentence although rare can be filed within two years of the prior sentencing date. For example, in a case where an older judge may sentence a repeat offender under a harsher standard than a younger judge, the judge may have intentionally not given a harsher sentence to a recent 18 year old offender that was involved in a robbery, but gave a 60 year sentence to a 30 year old defendant for the same conduct. Another example is where the judge is intoxicated or involved in a conflict of interest and if someone discovers those facts it can open the door to a Constitutional error under Article I Section 11 of the U.S. Constitution.
Specific Distinctions of Criminal Procedure Rules in Alaska
Understanding the Rules of Criminal Procedure (Part 2): Alaska ED’s Rules of Criminal Procedure
Unique Features of Alaska’s Rules of Criminal Procedure
A rule that Alaska has that most other jurisdictions do not have is criminal discovery. Alaska’s Criminal Procedure Rule 16(a)(1) involves discovery about the prosecutor’s case against you. Rule 16(a)(2) requires the defendant, upon request, to disclose to the prosecution any written or recorded statements or confessions; verbal oral statements, or confessions; documents, objects, or photographs; and names, addresses, and prior recording of the names and addresses of witnesses to those events. Rule 16(a)(4) states: The defendant shall provide to the prosecution, within 30 days of a request for discovery or at any time thereafter by order of the court, a written list of the names, addresses, and prior recorded statements of, and any scientific or medical reports concerning, each intended defense witness identified by the defendant. Upon request of the prosecution within 30, or at the time of trial, whichever is earlier, the defendant shall provide the prosecution with any qualified privilege waiver required to permit the prosecution to interview the defendant or any intended parole officer, investigator militarily trained witness, or expert witness. For good cause, the court may order a defendant to disclose the identity and current whereabouts of an alibi or surprise witness. This rule is unique because discovery and disclosure of prior statements are pretty secret until trial in most jurisdictions. Alaska requires all prior statements to be disclosed. Other rules that are different from other jurisdictions are Alaska’s remote video plea rules. These rules are Rule 2.1. They state: (a) Pleas made on record remotely. (1) An in-custody defendant may enter a plea agreement for a criminal charge or charges while appearing remotely before the court as provided in this rule. (2) A defendant wishing to enter such a plea agreement may do so either in person or through counsel, but if made through counsel, the following requirements apply: (A) the plea agreement shall be executed in the presence of the court, or if the court is not present, it shall be obtained through an audio-video recording of a judge’s acceptance of the agreement and the judge’s signature; and (B) the defendant shall sign the plea agreement in the presence of the court or through an audio-video recording, unless the signature is already affixed on the plea agreement at the time the agreement is entered into by the parties; if the defendant is not present at the time the agreement is entered into, the executing judge shall authenticate the signature. (3) The court may enter its oral and written acceptance in person. If the court is not present, acceptance of the plea agreement shall be made by the judge either in writing (signed) or by an audio/video recording. (4) For a plea made pursuant to this rule, the court may adopt the "routine" method of taking a plea as set forth in Alaska Criminal Rule 11(a), or a "nonroutine" method, as defined in Alaska Criminal Rule 11(b). (5) Once the plea agreement is accepted by the court, the defendant shall be ordered released from custody within five days. Upon release from custody, the defendant’s attorney shall be responsible for the execution of the release order.
References, Resources, and Further Reading on the Criminal Procedure in Alaska
The Alaska Criminal Rules Committee provides an online database including the Alaska Criminal Rules ([Alaska Statute Title 12 – Criminal Law](http://ak-criminal-rules.sitename.tld/Alaska%20Statutes%20Title%20%2012%20Shell/Alaska%20Statute%20Title%2012%20Criminal%20Law)). This site also offers downloadable versions of the statute as well as additional information on how to preserve issues for appellate review and findings of fact and conclusions of law. The Alaska Judicial System also maintains a set of legal resources and information for the public that includes self-help materials, family law guides, court forms, and a glossary of legal terms as well as a list of where to find additional resources ([Alaska Bars Association – Aslo](http://www.alaskabar.org/)) based in Juneau. The Alaska Court System homepage also contains extensive , searchable information on court rules and procedures. As is the case with most state court systems, the Alaska Court System does not interpret or give legal advice on any issue, but will provide information regarding current rules of procedure and available resources for those who wish to represent themselves. The Alaska State Legislature provides an online database of bills and statutes. A set of annotations and comments for each bill is provided online as well ([Alaska State Legislature](http://www.legis.state.ak.us/)) including legislative history and author and sponsor information. Finally, in addition to an Alaska Supreme Court Handbook (2019 Edition) that is available on the Alaska Court System website, the American Bar Association also publishes an Alaska Handbook which is available for purchase online.