Alabama Rules of Evidence: An Overview
The Alabama Rules of Evidence play a crucial role in every aspect of the administration of justice when a case goes to trial in an Alabama State or Federal Court. The Rules help establish a fair playing field for litigants and their lawyers. They set out the kinds of evidence that a judge will allow to be introduced at a trial. The Rules of Evidence are used for both civil and criminal cases.
Jury trials, or even bench trials, require relevant facts to be established by sworn testimony or documentary evidence. The Alabama Rules of Evidence control the process of determining what amounts to admissible evidence.
Everyone at a trial has a job. The judge applies the law of the applicable jurisdiction to the facts in the case to reach a conclusion. The goal of the parties is to persuade the judge or jury to rule in their favor ‘beyond a reasonable doubt’ in a criminal case, or ‘preponderance of the evidence’, (‘more likely than not’) in a civil case.
In addition to the judge deciding issues of law, in a jury trial, jurors are given a series of instructions from the judge about how the Rule of Evidence and the law pertain to the case they are trying. The judge decides legal questions of fairness and admissibility, but the jury makes the final determination of guilt or liability, usually in a secret deliberation.
An attorney is there to advocate for a client by making motions, presenting objections, and entering evidence. Each attorney also has the responsibility for putting on their case in a way that doesn’t mislead the judge or jury.
Just because a piece of evidence is relevant to the issue, does not mean that the judge will let it in . For example, Eyewitness A is walking down the street in Enterprise, Alabama when he sees a Ford Taurus run a stop sign. If Eyewitness A is attempting to testify during a trial that the defendant drove a blue Toyota Corolla, his testimony is not relevant as far as the judge is concerned.
However, if Eyewitness A then went on to testify as to what type of car he thought the defendant drove, he could be asked to explain under cross examination where he got that impression.
Legal opinions formed by non-expert witnesses, or lay witnesses, are generally not admissible (not allowed in) evidence. When a witness states "I think he was speeding" this conclusion adds little to the determination of speeding charges against a defendant. However, if the same witness is asked to explain why he thinks the defendant was speeding (like "I could hear the tires screeching"), he could be allowed to explain what he saw.
An expert can be called to testify, but the opposing party may challenge the expertise of the proffered expert. If allowed into evidence, the expert testimony will generally be used by the judge or jury to draw a conclusion relevant to the determination of the facts in the case.
Because of the Rules of Evidence, a litigant may have his evidence ruled inadmissible by an Alabama judge or the Federal Court system. It is very important to understand the Rules of Evidence to avoid an evidentiary disaster at trial.
Alabama Rules of Evidence have been developed over the past 400 years, and have been amended and supplemented many times since they were first made as English Common Law.
The Historical Foundation of the Alabama Evidence Rules
In 1975, the Alabama Legislature formally adopted the Alabama Rules of Evidence. Prior to their enactment by statute, the rules had been introduced in a bill in 1971 but faced resistance. Although the rules were recommended by the Chief Justice’s Special Study Commission Committee on Rules of Evidence in 1972, the Alabama Bar Association defeated a motion to send them to the legislature for adoption in 1973. In 1974, the Supreme Court remitted a set of unpublished rules for consideration of the Legislature. When that bill was not passed, the current set of rules became effective on July 23, 1975 by adoption of the Supreme Court of Alabama.
In issuing the rules, the Supreme Court sheepherded the rules through the legislative process and the prepublication adopted the rules in final form. The pre publication explained the adoption process, but not the content or details of the rules. The pre publication also informed the public they could inspect the rules at the Clerk of the Supreme Court’s office.
The Rules Committee that later drafted the source notes for the rules went through five drafts from August 1975 to March 1977. As opposed to the underlying sources for the Federal Rules, there are not any single published source references for the Alabama Rules of Evidence. The committee contemplated but did not publish the legislative history. Committee members referenced various articles and case law to the extent some committee members discussed their thought processes in drafting changes to the Federal or Colorado Rules that were not in the Alabama rules.
Over time, the Rules Committee continued to revise the rules. The Rules Committee looked to the Federal Rules and the treatment of similar sections in other states. The revision process was slow. A rule was not added until 1996 which allowed for and provided the procedures for opinion testimony by expert witnesses. It was not until 2008 that changes to the rules were recommended to allow for electronic storage and in 2012 the rules were published as the body of the Alabama Rules of Evidence for the first time. Previously, the rules had been published only hornbook style with verbatim copies of the Federal Rules of Evidence.
The rules have been criticized for being convoluted and difficult to interpret. In contrast to the Federal Rules, the Alabama Rules have been criticized for lacking a definitive style and having countless minor difficulties. Other criticisms focus on the Rules’ inability to balance the exclude/restrict aspect of the Rules with the admission/enforcing aspect. Even so, the Rules of Evidence have proven to be an incomplete compilation of guiding rules for state courts.
General Evidence Rules in Alabama
The pillar upon which the Alabama Rules of Evidence rest is the concept of relevance. Relevant evidence is admissible unless there is a specific rule that excludes it. Conversely, irrelevant evidence is not admissible. Rule 401 states that evidence is relevant if it has any tendency to make the existence of any fact more or less probable than it would be without the evidence. In plain English, it needs to be pertinent to the case at hand. The trial judge has broad discretion in deciding whether to admit or exclude particular evidence.
In Alabama courts every objection is considered to be to the whole evidence and is not taken as an admission that any part of it is admissible, unless the objection is specifically directed to some part of the evidence. All parts of the evidence are excluded by an objection to it, unless there is a specific ruling by the judge allowing its consideration.
An example is where a plaintiff is suing a defendant for negligently hitting them with a car and in addition to the claim for pain and suffering the plaintiff is seeking lost wages and medical bills as special damages. The plaintiff has hired a doctor who has treated him and another doctor who examined him on a few occasions and is going to offer them at trial. The plaintiff’s attorney calls the treating doctor to the stand to testify. When the doctor starts to talk about treatment the defense lawyer objects and says that the plaintiff failed to disclose the treating doctor in her pretrial disclosures and that the scheduling order requires no disclosure of new experts to exclude that doctor to testify. The judge can exclude the doctor’s testimony. However, if the defense lawyer only objects to the doctor’s qualifications, the judge can disallow the doctor from testifying as to causation, extent, and nature of the injuries as well as treatment, but may allow the doctor to testify as to his ongoing treatment. This depends on the facts of each case and the judge’s discretion.
Irrelevant evidence is not admissible, except as otherwise provided in the Alabama Rules of Evidence or as otherwise provided by statute. Rule 402.
While all relevant evidence is admissible in most cases, it is not relevant to possess all qualities. Relevancy is not a test of the materiality or weight of the evidence, nor is it based on its probative force or trustworthiness. Relevant evidence may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Rule 403.
What Kind of Evidence is Allowed in Alabama?
The rules of evidence in Alabama recognize several categories of evidence that can be presented at trial.
Testimonial evidence
This is arguably the most common form of evidence. It is any statement made by a competent witness that is relevant to an issue before the court. Generally, witness testimony is qualified based on whether the judge believes the witness has sufficient knowledge to testify about the matter at issue. Witnesses may be either fact or expert witnesses. Witnesses who are not providing expert testimony must have personal knowledge of the matter about which they are testifying. Expert witnesses have specialized knowledge that helps the jury to understand the facts.
Documentary evidence
This type of evidence is any paper or other tangible object that contains information relevant to the legal proceeding. A popular form of documentary evidence is photographs. Other forms of documentary evidence include contracts, wills and medical or insurance records.
Real evidence
Real evidence is any physical object that can be observed by the senses. This can include the weapon used in a murder, the coat worn by a party or a body. Real evidence is only available when the object is related to the matter at issue and the object is authenticated to ensure that it is what it purports to be.
Demonstrative evidence
Demonstrative evidence is any tangible object that is presented to help explain a witness’ testimony or to clarify a point to the jury. Demonstrative evidence includes charts and graphs, but its value is debatable, and courts will often exclude it.
Major Rules and Their Applications
Understanding the Alabama Rules of Evidence: A Comprehensive Guide
Section IV: Key Rules and Applications
There are a multitude of rules and applications within the Alabama Rules of Evidence. In most cases, these rules will have a specific application within a given set of circumstances. These circumstances arise most commonly, amongst expert witnesses, witness testimony, and the introduction of business records into evidence. The following is a brief summary of some of the more common rules that an experienced personal injury attorney in Montgomery will utilize when litigating a case in Alabama:
Hearsay is defined as "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." The Alabama Rules of Evidence provide that if a statement is hearsay, it is inadmissible unless it meets one of the recognized exceptions. Hearsay is not generally considered admissible, because it fails to allow the opposite party the opportunity to appropriately cross examine the author of the statement. Hearsay often becomes an issue during a trial, when one party attempts to introduce evidence against one of the witnesses before the jury. In instances in which evidence must be precluded, often the Court will make reference to the hearsay rule.
Expert testimony is defined as the testimony of a qualified person on a given subject. The testimony generally is based on a scientific knowledge about a specific area . In order to qualify as an expert witness, the individual must have the knowledge, education and training related to the issue on which the opinion is based. An expert witness may be a physician, surgeon or other health care provider. The principal function of an expert is to aid the trier of fact in evaluating evidence that is beyond the understanding of a lay person. Therefore, expert testimony is admissible only if the expert is qualified, qualified by training, experience and knowledge.
The best evidence rule states that "Original writing, recording, or photograph is required in order to prove the content thereof. An original is not required, and other evidence of the content of a writing, recording, or photograph is admissible." Essentially, the best evidence rule requires that the actual document itself be introduced, rather than a copy. At times it is not possible to bring the actual document to Court. For example, often business will keep electronic copies instead of original documents. In that situation, the electronic document (e.g. a scan of the document) may be admissible in lieu of the actual document.
The business record exception to the hearsay rule applies in a situation in which a person in the business is in charge of records and keeps them in the ordinary course of business. For the document to be admissible it must appear that the person who made the record had personal knowledge of the transaction. The Court will also allow the records to be admitted, if there has been a verification of these records by the custodian of the records.
Latest Revisions and Problems
The Alabama Rules of Evidence were first adopted in 1975, and the Alabama legislature has amended the rules periodically to reflect new procedural standards or specific needs. More recently there has been an ongoing concern about whether the rules are consistent with the Federal Rules of Evidence which were first adopted by Congress in 1975. To date, the rulemakers in Alabama have decided against adopting the Federal Rules of Evidence completely, choosing instead which Federal rules to adopt and which to disregard.
In 2007, Rule 606 was amended to change the standard from a strict ban on juror testimony post verdict to a more flexible rule that permitted a trial judge to hear certain questions. In 2009, Rule 803 (20) was amended to comply with the new Alabama Admissibility of Hearsay Statements Regarding Child Victims Law (Act 2009-353).
Contemporary quagmire includes whether giving an instruction to the jury on a statutory law will relieve a party from providing a witness to testify as to the state of the law in question. Like all areas of the law in Alabama, this is now subject to variable interpretations by different courts.
Tips for Attorneys with Alabama Evidence
The Rules of Evidence are not always intuitive and, like most areas of the law, are subject to interpretation. Some common issues or questions arise regularly during litigation before Alabama courts, which should be addressed by lawyers. Here are a few suggestions to consider when dealing with the Rules of Evidence.
- Make sure you know the applicable burden of proof on each issue in your case and make sure you have evidence to meet each applicable burden. State of Alabama ex rel. Flowers v. Lawson, 408 So. 2d 1363 (Ala.Civ.App.1981).
- Timely object in open court to preserve error in the admission or exclusion of evidence under the Rules of Evidence.
- When there is a ruling on the evidence, don’t forget to renew your objection when the evidence comes back in.
- Give the ground for your objection, other than relevance (which is usually assumed), so Judge knows why you think it’s inadmissible.
- When evidence is excluded, still put the evidence on the record because may be grounds for new trial.
- Don’t forget that hearsay can come from the jury or attorney and be objected to on that basis. See Rule 802.
- If opposing party gets up and says something that is an improper comment or argument, immediately raise the objection. Doing so immediately gives the Court an opportunity to stop whatever it is that is being done.
- If an argument is made by opposing counsel that is improper, object immediately and cite to the rule that is violated. Don’t wait til you are getting ready to call witness, so there will be no undue influence on the witness.
- On cross, make sure to use Fed.R.Evid. 607 type and 608(b) type impeachment, if available. Rule 613, prior inconsistent statements.
- Where the testimony of opposing party makes your client’s position difficult, the weight of the evidence no longer favors your client, request in the alternative for a directed verdict.
- Don’t try to use Rule 201(a). All parties have a right to jury trial in civil cases in Alabama.
- If evidence is admitted with limiting instruction that jury not consider for other purposes, should do all you can to enforce the Rules.
Closing Thoughts and Ongoing Developments
The conclusions of this article remind the practitioner that staying current on the ongoing developments of evidence law are crucial to being an effective advocate for a client. Be certain to adhere to the deadlines for amending the codes. While the organizational code is a relatively new addition to the Alabama evidence law, practitioners should realize that the uniformity of the federal rules is may be difficult to maintain in practical application. Simply put, the language of the 21st century has numerous common usages for words that are unique in legal drafting . The continuing changes and case law on the federal and state levels make a diligent review of the codes necessary. You will see summaries of new substantive law on this blog as it happens. Cases will be noted with supportive reasoning of the court on this blog. The continuing developments of evidentiary law will have a dramatic affect on trial practice, sheriffs substantiating affidavits, officers in courts and magistrates for years to come. As in most endeavors, a first look at the "big picture" to organize your thoughts is helpful; however, one must drill down to a detailed level to achieve success. The Alabama rules of evidence are effective January 1, 2000.