Alabama Rules of Evidence

Rule 101. Scope.

These rules govern proceedings in the courts of the State of Alabama to the extent and with the exceptions stated in Rule 1101.

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This rule is the same as its federal counterpart except as modified for state application. As in Fed.R.Evid. 101, it is left for Rule 1101 to specify the courts, proceedings, questions, and stages of proceedings to which the rules apply in whole or in part. Providing such an initial broad statement of scope, with a subsequent rule dealing with scope in greater detail, is somewhat similar to the approach found in Rule 1(a) of the Alabama Rules of Civil Procedure. That rule, for example, refers the reader to Ala.R.Civ.P. 81 for a more detailed statement of scope. The purpose underlying this approach is to avoid discouraging the reader, at the outset of any study of the rules, with minute scope provisions. See J. Weinstein & M. Berger, 1 Weinstein’s Evidence ¶ 101[01], at 101-02 (1980). The intent, except as otherwise provided in Rule 1101, is that the Alabama Rules of Evidence apply in all courts and proceedings in which the general law of evidence applied before these Rules were adopted.

Rule 102. Purpose and construction.

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

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This general statement of purpose and construction is identical to that in Fed.R.Evid. 102. The language used is similar to that found in other rules of practice and procedure. See, e.g., Ala.R.Civ.P. 1(c) (Alabama Rules of Civil Procedure are to be construed “to secure the just, speedy and inexpensive determination of every action”); Ala. Code 1975, § (all provisions of the Criminal Code are to be interpreted “according to the fair import of their terms to promote justice and to effect the objects of law”); Ala.R.Crim.P. 1.2 (rules are to be constructed so as “to secure simplicity in procedure, fairness in administration, and the elimination of unnecessary delay and expense, and to protect the rights of the individual while preserving the public welfare”).

These rules have been modeled, except where a different treatment was deemed justified for Alabama practice, after the Federal Rules of Evidence, and much of the material in the advisory notes is devoted to a discussion of whether the Alabama Rule of Evidence is identical to or different from its counterpart under the Federal Rules of Evidence. The committee assumes, consequently, that cases interpreting the Federal Rules of Evidence will constitute authority for construction of the Alabama Rules of Evidence. See, e.g., State v. Smith, 97 Wash. 2d 856, 651 P.2d 207 (1982); Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980). Cf. Ex parte Duncan Constr. Co., 460 So.2d 852 (Ala.1984) (Alabama Rules of Civil Procedure are construed in light of cases interpreting Federal Rules of Civil Procedure). Cases interpreting the federal rules, however, are persuasive rather than mandatory authority before the Alabama courts. See State v. Outlaw, 108 Wis. 2d 112, 321 N.W.2d 145 (1982).

Rule 103. Rulings on evidence.

(a)   Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1)   OBJECTION. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2)   OFFER OF PROOF. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(b)   Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c)   Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d)   Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights in a case in which the death penalty has been imposed, even if they were not brought to the attention of the court.

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Section (a). Effect of ruling. This subsection, identical to Federal Rule of Evidence 103(a), continues the Alabama doctrine that an evidence ruling is not assignable as error unless (1) a substantial right is affected and (2) the nature of the error is brought to the attention of the trial court in the manner prescribed in Rule 103(a)(1) or Rule 103(a)(2). Section (a) continues the historic “harmless error rule,” as well as the traditional judicial applications of that principle. See Dinmark v. Farrier, 510 So.2d 819 (Ala.1987); Allison v. Lee, 333 So.2d 149 (Ala.Civ.App.1976). Compare Ala.R.App.P. 45 (an appellate court will not reverse unless “it should appear that the error complained of has probably injuriously affected substantial rights”); Ala.R.Civ.P. 61 (a reviewing court is to “disregard any error or defect in the proceeding which does not affect the substantial rights of the parties”). See also Colo. Rev. Stat. § 33-103(a) (1984); N.C. Gen. Stat. § 8c-1-103(a) (1986).

This rule’s recognition of the harmless error principle is not an invitation for trial courts to ignore the rules of evidence. A court should not admit evidence on the conclusion that although it is improper to admit the evidence, its admission is acceptable if it will not affect a substantial right.

Subsection (a)(1). Objection. This subsection embraces preexisting Alabama law regarding the actions a party must take at trial in order to complain that the trial court erred in admitting evidence. The complaining party is required at trial to formally object or move to strike. Bell v. State, 466 So.2d 167 (Ala.Crim.App.1985); Standridge v. Alabama Power Co., 418 So.2d 84, 88 (Ala.1982). See Ex parte Marek, 556 So.2d 375 (Ala.1989) (a motion for mistrial, specifically stating grounds and lodged immediately after the question is asked, preserves error for appellate review). The objection or motion to strike must be timely. This means that usually, although not invariably, the objection or motion to strike must be made after a question is asked but before the witness answers. Davis v. Southland Corp., 465 So.2d 397 (Ala.1985) (objection appeared three pages later in the transcript); Bryant v. State Farm Fire & Casualty Ins. Co., 447 So.2d 181 (Ala.1984) (dealing with motion to strike). See Southern Cement Co. v. Patterson, 271 Ala. 128, 122 So.2d 386 (1960) (recognizing that a timely objection may be made after an answer in some circumstances). Additionally, the objection or motion must state a specific ground of objection, unless it is apparent from the context. Holt v. State Farm Mut. Auto. Ins. Co., 507 So.2d 388 (Ala.1986); Davis v. Southland Corp., 465 So.2d 397 (Ala.1985). As in prior Alabama practice, no specific ground of objection is required if the matter to which the objection or the motion to strike is addressed is patently illegal or irrelevant. See Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54 (1917); Johnston v. Johnston, 174 Ala. 220, 57 So. 450 (1912) (use of the word “illegal”); Bufford v. Little, 159 Ala. 300, 48 So. 697 (1909) (use of the words “illegal, irrelevant and incompetent”). See also M. Ladd, Objections, Motions and Foundation Testimony, 43 Cornell L.Q. 543, 546 (1958) (the author concludes that language like that used in Alabama pre-rules decisions – e.g., “patently illegal and irrelevant” – is, in effect, the same as that used in the federal rule). See generally C. Gamble, McElroy’s Alabama Evidence § 426.01 (4th ed. 1991).

Subsection (a)(2). Offer of proof. This subsection is identical to Fed.R.Evid. 103(a)(2). It continues the preexisting Alabama practice under which the party offering the evidence generally may not argue that the trial court erroneously excluded it unless a substantial right of the offering party is affected (see Rule 103(a)), and unless the proponent discloses at trial, by an “offer of proof,” the substance of the evidence. Ensor v. Wilson, 519 So.2d 1244 (Ala.1987); White v. State, 48 Ala.App. 111, 262 So.2d 313 (1972); Redwine v. State, 258 Ala.196, 61 So.2d 724 (1952). An offer of proof customarily includes calling the court’s attention to the expected answer and explaining the relevancy of that answer. White v. State, 48 Ala.App. 111, 262 So.2d 313 (1972). The purpose of this requirement is both to better enable the trial judge to consider the claim for admissibility and to better apprise the reviewing court of what occurred in the trial below. No offer of proof is required when the nature of the evidence is apparent from the context in which questions were asked. Walton v. Walton, 409 So.2d 858 (Ala.Civ.App.1982) (expected answer was indicated by the wording of the question); Killingsworth v. Killingsworth, 283 Ala. 345, 217 So.2d 57 (1968). Nothing in this rule affects preexisting Alabama authority under which the trial court will not be placed in error for sustaining an objection when the proponent of the evidence fails to identify which of several multiple parties the evidence is admissible against. Kriewitz v. Savoy Heating & Air Conditioning Co., 396 So.2d 49 (Ala.1981). Compare Ala. Code 1975, § 12-21-138 (superseded by this rule). See also C. Gamble, McElroy’s Alabama Evidence § 425.01 (4th ed. 1991).

Section (b). Record of offer and ruling. This section recognizes the discretionary power of the trial court to supplement an offer of proof or an objection with clarifying statements. These may indicate the character and form of offered evidence, the objection made regarding the offered evidence, and the ruling thereon. This discretion is consistent with traditional Alabama practice, which recognizes the trial judge’s role as more than merely a referee. See Davis v. Davis, 474 So.2d 654 (Ala.1985); Pouncey v. State, 24 Ala.App. 326, 136 So. 741, cert. denied, 223 Ala. 431, 136 So. 743 (1931). The language used in expressing this concept is virtually the same as that in Ala.R.Civ.P. 43(c), which provides: “The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.”

The last sentence of the section provides that the trial court may direct that an offer of proof be made in question and answer form. This is inconsistent with, and thus supersedes, the last sentence of Ala.R.Civ.P. 43(c), which provided that, at least in nonjury cases, the trial judge was required, if requested, to take and report the evidence in full, unless it clearly appeared that the evidence was inadmissible or that the witness was privileged.

Section (c). Hearing of jury. This section declares the preexisting Alabama practice of vesting the trial judge with the discretion to require that an offer of evidence, along with the accompanying arguments, be made outside the hearing of the jury. See Birmingham Nat’l Bank v. Bradley, 108 Ala.205, 19 So. 791 (1895); Shiflett v. State, 38 Ala.App. 662, 93 So.2d 523, cert. denied, 265 Ala. 652, 93 So.2d 526 (1957). Consistent with this principle is that strong line of evolving Alabama precedent that encourages Alabama judges to use the motion in limine as a pretrial mechanism for preventing the jury’s hearing potentially prejudicial evidence before the court has ruled on its admissibility. See, e.g., Mason v. New, 475 So.2d 854 (Ala.1985); Acklin v. Bramm, 374 So.2d 1348 (Ala.1979). See also C. Gamble, The Motion in Limine: A Pretrial Procedure that has Come of Age, 33 Ala.L.Rev. 1 (1981).

Section (d). Plain error. This rule continues preexisting Alabama law. An appellate court, reviewing a case in which the death penalty has been imposed, may notice plain error even if it was not brought to the attention of the trial court. Ala.R.App.P. 39(k) (applicable to the Alabama Supreme Court); Ala.R.App.P. 45A (applicable to the Alabama Court of Criminal Appeals); Ala. Code 1975, § 12-22-241 (automatic appeal statute). Plain error may not be noticed, of course, unless it has or probably has adversely affected the substantial rights of the appellant. Reed v. State, 407 So.2d 153 (Ala.Crim.App.1980), rev’d on other grounds, 407 So.2d 162 (Ala.1981). Stated differently, reversal may be based upon a plain error that was not brought to the attention of the trial court if that error was seriously prejudicial. Ex parte Dill, 600 So.2d 372 (Ala.1992), cert. denied,__ U.S. __, 113 S.Ct. 1293 (1993).

Adoption of section (d) constitutes a rejection of the general “plain error doctrine” found in the Federal Rules of Evidence, under which a party in all cases may claim error on appeal, even after failing to properly call the error to the trial court’s attention, if the alleged error affected substantial rights. See Fed.R.Evid. 103(d); United States v. Cannington, 729 F.2d 702 (11th Cir.1984). This section continues the Alabama rule that matters not raised at the trial level may not be asserted for the first time on appeal except in death penalty cases. See Jackson v. State, 260 Ala. 641, 71 So.2d 825 (1954); McGinnis v. State, 382 So.2d 605 (Ala.Crim.App.1979), cert. denied, 382 So.2d 609 (Ala.1980). See also C. Gamble, McElroy’s Alabama Evidence § 426.01 (4th ed. 1991).

Rule 104. Preliminary questions.

(a)   Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(b)   Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition or may admit that evidence subject to the introduction of evidence sufficient to support such a finding.

(c)   Hearing or presence of jury. In criminal cases, hearings on the admissibility of confessions or evidence alleged to have been obtained unlawfully shall be conducted out of the hearing and presence of the jury. Hearings on other preliminary matters shall be conducted out of the hearing and presence of the jury when the interests of justice require.

(d)   Testimony by accused. The accused does not, by testifying at a preliminary hearing on the admissibility of a confession, become subject to cross-examination as to other issues in the case.

(e)   Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

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Section (a). Questions of admissibility generally. Like preexisting Alabama law, and like the corresponding federal rule, this section recognizes that preliminary questions intended to establish conditions precedent to admissibility are for the court rather than the jury. C. Gamble, McElroy’s Alabama Evidence § 464.01 (4th ed. 1991); Fed.R.Evid. 104. This principle applies when the judge is called upon to decide whether a statement was sufficiently contrary to a declarant’s interest to qualify for admission under the “declaration against interest” exception to the hearsay exclusion. See Ala.R.Evid. 804(b)(3). A similar application arises when the judge decides whether a witness is “unavailable,” so that the witness’s statement can come within those hearsay exceptions carrying the threshold requirement of unavailability. See Ala.R.Evid. 804(a); Lundy v. State, 539 So.2d 324 (Ala.Crim.App.1988). This principle is also applied when a trial court determines whether a witness’s qualifications authorize the witness to testify as an expert. See Ala.R.Evid. 702.

When the preliminary question is of a factual nature, the judge “will of necessity receive evidence pro and con on the issue.” Fed.R.Evid. 104 advisory committee’s note. In such instances, this section (a) provides that evidence rules generally do not govern the process whereby the judge determines whether the facts governing the preliminary questions exist. Stated differently, the judge, while determining the preliminary question, may hear evidence that itself may not be admissible. A rule making the exclusionary evidence rule inapplicable to the evidence governing preliminary questions has been advocated by imminent authority. E. Cleary, McCormick on Evidence § 53 (3d ed. 1984). A judge, for example, may have to hear what a witness claims to have seen before making the preliminary determination of whether the witness does indeed possess firsthand knowledge sufficient to allow the witness to testify in the case. See Ala.R.Evid. 602.

This rule results in the judge’s being made privy to facts that themselves may be inadmissible under the exclusionary rules of evidence. While the judge, in determining preliminary questions, is generally not bound by the exclusionary rules of evidence, there is one important exception – the rules of privilege. The judge may hear facts, in determining whether the party asserting a privilege intended confidentiality, without those facts necessarily being admissible under the rules of evidence. However, the judge customarily should not ask for facts, in making that preliminary determination, that themselves fall within the protection of the asserted privilege. There are occasions, on the other hand, when the trial judge cannot adequately decide whether an asserted privilege applies without hearing, in camera, the matter alleged to be privileged. Nothing in section (a) is intended to preclude the judge from hearing that matter in appropriate circumstances. See United States v. Zolin, 491 U.S. 554 (1989).

Section (b). Relevancy conditioned on fact. The admissibility of evidence often turns upon a party’s proof of a fact upon which relevancy is conditioned. Such a fact may rightly be termed a “conditional fact.” See Eggleston v. Wilson, 208 Ala. 167, 94 So. 108 (1922). Thus, for evidence of prior accidents on a civil defendant’s premises to be admissible as evidence that the defendant had notice of a defective condition, it first must be shown that the defendant had notice of them. When sufficient evidence is introduced to prove the conditional fact, the judge is to admit the evidence. One exception arises when, as a discretionary matter, the judge admits the evidence upon the condition that the offering party later presents proof of the conditional fact. See Hooper v. State, 585 So.2d 142 (Ala.Crim.App.1991), on remand from 585 So.2d 137 (Ala.1990), rev’g 585 So.2d 133 (Ala.Crim.App.), cert. denied, 503 U.S. 920 (1992). See also C. Gamble, McElroy’s Alabama Evidence § 13.01 (4th ed. 1991); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 1-4(B) (1987).

Section (c). Hearing or presence of jury. The trial judge is not generally required to conduct hearings on preliminary questions in civil cases out of the hearing and presence of the jury; the trial court must do so only when the court determines that the interests of justice require it to do so. The same rule applies in criminal cases except with regard to the admissibility of confessions and evidence alleged to have been obtained illegally. See Garsed v. State, 50 Ala.App. 312, 278 So.2d 761 (1973). See also C. Gamble, McElroy’s Alabama Evidence § 10.01 (4th ed. 1991).

Section (d). Testimony by accused. Section (d) constitutes a rejection of the corresponding federal rule, which recognizes the right of the accused to take the stand at trial and give testimony on any preliminary matter without waiving the right not to be cross-examined as to other issues. See Fed.R.Evid. 104(d). Prior Alabama law, which allows wide-open cross-examination of the accused concerning preliminary matters testified to by the accused at trial, continues.

As under historic Alabama law, section (d) recognizes the accused’s right to testify at a hearing on the admissibility of a confession, held outside the hearing of the jury, without being subjected to cross-examination concerning matters related to guilt other than as those matters may be relevant to the question of the confession’s admissibility. Boulden v. State, 278 Ala. 437, 179 So.2d 20 (1965) (voluntariness); C. Gamble, McElroy’s Alabama Evidence § 200.02(7) (4th ed. 1991). However, if the accused takes the stand at trial to testify as to facts going to the weight that the trier of fact should give a confession, the door remains open under preexisting Alabama law to cross-examination as to any matter relevant to guilt. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Fikes v. State, 263 Ala. 89, 81 So.2d 303 (1955), rev’d on other grounds, 352 U.S. 191 (1957). See C. Gamble, McElroy’s Alabama Evidence § 378.02 (4th ed. 1991).

Section (d) does not address the issue of whether, or to what extent, the accused’s prior testimony on a preliminary matter may be used against the accused subsequently. See, e.g., Harris v. New York, 401 U.S. 222 (1971); Simmons v. United States, 390 U.S. 377, 392 (1968). See also Walder v. United States, 347 U.S. 62 (1954) (drawing a distinction between the prosecution’s affirmative use of inadmissible evidence and its use of such evidence to contradict the accused when the accused gives what the prosecution believes is perjured testimony).

Section (e). Weight and credibility. Rule 104, in generally assigning to the judge the preliminary questions (see sections (a) and (b)), does not take away from the ultimate fact-finding role of the jury. A positive determination that preliminary facts are sufficient to guarantee threshold relevancy, or the inapplicability of some rule of evidentiary exclusion, does not answer the question of ultimate probative value. Even if the judge concludes that a party has offered sufficient evidence of authenticating facts to admit a handwritten letter, for example, the ultimate issue of authenticity is for the jury. It is the jurors who decide what weight should be given to the authenticating testimony or, indeed, whether the authenticating testimony should be believed at all. Evidence of facts sufficient to qualify a witness as an expert in no way precludes the jury from deciding what weight, if any, to give that witness’s testimony. On these ultimate questions of weight and credibility, either party has the right to offer relevant evidence before the jury. Burton v. State, 107 Ala. 108, 18 So. 284 (1895), overruled by Martin v. Martin, 123 Ala.191, 26 So. 525 (1899).

Rule 105. Limited admissibility.

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

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This rule, like its identical counterpart in the Federal Rules of Evidence, recognizes two instances when evidence has limited admissibility in litigation. Some evidence, for example, may be admissible against one party in a case but not admissible against another joined in the same lawsuit. Additionally, evidence may be admissible for some limited purpose in the case and yet not be admissible or usable for other purposes. Rule 105 declares that the court, when so requested in one of these limited admissibility settings, shall restrict the evidence to the party against whom it is admitted or to the purpose for which it is admitted and shall instruct the jury accordingly. Instructions in this regard will have maximum effectiveness in some cases only if the trial court likewise instructs the jury as to the purpose or purposes for which it may not use the evidence. See Cups Coal Co. v. Tennessee River Pulp & Paper Co., 519 So.2d 932, 936 (Ala.1988). See also C. Gamble & G. Windle, Subsequent Remedial Measures Doctrine in Alabama: From Exclusion to Admissibility and the Death of Policy, 37 Ala.L.Rev. 547, 559 (1986).

This rule leaves in place that line of preexisting authority in Alabama under which evidence may be admissible against only one of two joined defendants. In cases involving negligent entrustment of an automobile, for example, it is common to admit evidence of collateral acts of negligent driving by the bailee as evidence against the bailor. While inadmissible to prove the primary negligence of the bailee, such evidence may be probative of the bailee’s incompetency with an automobile and the bailor’s knowledge of that incompetency. Mason v. New, 475 So.2d 854 (Ala.1985); Bruck v. Jim Walter Corp., 470 So.2d 1141 (Ala.1985). See C. Gamble, McElroy’s Alabama Evidence § 12.01 (4th ed. 1991).

Much of Alabama’s evidence law consists of doctrines calling for the exclusion of particularly prejudicial evidence but only when it is offered for a specified, impermissible purpose. Evidence of collateral crimes committed by a criminal defendant, for example, may not be admitted if offered for the purpose of proving that the accused is of a particularly criminal character and acted in keeping therewith on the occasion of the now-charged crime. Ex parte Cofer, 440 So.2d 1121 (Ala.1983); C. Gamble, McElroy’s Alabama Evidence § 27.02(1) (4th ed. 1991). However, such evidence may be admitted when offered for such permissible purposes as proving knowledge, intent, motive, identity, etc. Ex parte Killough, 438 So.2d 333 (Ala.1983); C. Gamble, Character Evidence: A Comprehensive Approach 35 (1987). Another historic example of this limited-purpose admissibility is found in the rule defining excludable hearsay as only that which is offered to prove the truth of the matter asserted; this definition opens the door to a host of other permissible purposes for which a statement may be admitted and thereby avoid the ban on hearsay. Atmore Farm & Power Equip. Co. v. Glover, 440 So.2d 1042 (Ala.1983).

This theory of limited-purpose admissibility underlies several of the Alabama Rules of Evidence. Among these are Rule 404(b) (authorizing the admission of evidence of collateral misconduct when it is offered for some purpose other than to show that the subject person committed the now-charged act); Rule 801(c) (providing that declarations are nonhearsay by definition if not offered to prove the truth of the matter asserted); Rule 407 (allowing evidence of subsequent remedial measures when offered for purposes other than to prove negligence or culpable conduct); Rule 408 (recognizing that offers of compromise may be admissible when offered for purposes other than to prove liability for, or invalidity of, a claim or the amount); and Rule 411 (expressing the historic rule excluding evidence of liability insurance coverage when offered to prove that the insured person acted negligently or otherwise wrongfully).

Rule 106. Remainder of writings or recorded statements.

When a party introduces part of either a writing or recorded statement, an adverse party may require the introduction at that time of any other part of the writing or statement that ought in fairness to be considered contemporaneously with it.

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This rule constitutes a specialized application of the common law completeness doctrine. See 7 J. Wigmore, Wigmore on Evidence § 2113 (Chadbourn rev. 1978). When one party introduces a portion of a writing or a recorded statement, it is deemed only fair that the adverse party be allowed to have admitted any other part of the writing or recorded statement that in fairness ought to be considered. Rule 106 constitutes a rejection of that portion of the corresponding federal rule that expands the historic doctrine of completeness to include the admission of any additional writing or recorded statement that ought in fairness to be considered contemporaneously with an already admitted writing or recorded statement. See Fed.R.Evid. 106.

The doctrine of completeness has traditionally been recognized in Alabama law. Coleman v. Sparkman, 370 So.2d 977 (Ala.1979); C. Gamble, McElroy’s Alabama Evidence § 316.01 (4th ed. 1991). With regard to completeness of depositions, Rule 106 is virtually a restatement of Ala.R.Civ.P. 32(a)(4), which provides that if only part of a deposition is offered in evidence by a party, then an adverse party may require the party introducing it to introduce all of it that ought in fairness to be considered with the part introduced. Both this Rule 106 and Ala.R.Civ.P. 32(a)(4) vest in the trial judge considerable discretion to determine what “in fairness” ought to be considered with the part introduced. See Hargress v. City of Montgomery, 479 So.2d 1137 (Ala.1985).

Rule 106 applies only to writings and recorded statements or parts thereof. This rule is not intended to affect preexisting Alabama applications of the completeness doctrine that lie outside the confines of Rule 106. The rule, for example, has no impact upon instances when the completeness doctrine is applied to unrecorded conversations. A prominent example of such an application, having continuing existence after adoption of Rule 106, is the rule that if one party proves any part of an unrecorded oral conversation or oral statement, the other party has the right to prove the relevant remainder of it. Abram v. State, 574 So.2d 986 (Ala.Crim.App.1990); Stockard v. State, 391 So.2d 1049 (Ala.Crim.App.1979), rev’d, 391 So.2d 1060 (Ala.1980).

Another completeness principle lying outside of Rule 106 is that under which a party, whose admission has been admitted against him or her, may prove all that was said at the same time as the admission and on the same subject. Bank of Loretto v. Bobo, 37 Ala.App. 139, 67 So.2d 77, cert. denied, 259 Ala. 374, 67 So.2d 90 (1953); C. Gamble, McElroy’s Alabama Evidence § 180.01(8) (4th ed. 1991).

In addition to specifying evidence that should be admitted as part of the doctrine of completeness, Rule 106 contains a provision regarding timeliness. The adverse party may require that the evidence needed to provide fairness be admitted at the time the initial evidence is admitted. Compare Ala.R.Civ.P. 32(a)(4). This allowance is afforded in the belief that delay in providing completeness evidence will render it less effective. This rule of contemporaneous admission in no way limits the right of the adverse party to go into the same matter on cross-examination of the witness or to offer evidence on the same matter as part of the adverse party’s own case. See Fed.R.Evid. 106 advisory committee’s note.

Rule 201. Judicial notice of adjudicative facts.

(a)   Scope of rule. This rule governs only judicial notice of adjudicative facts.

(b)   Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c)   When discretionary. A court may take judicial notice whether requested or not.

(d)   When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e)   Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f)   Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

(g)   Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

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Section (a). Scope of rule. Rule 201, adopted verbatim from the corresponding Federal Rule of Evidence, deals with judicial notice of adjudicative facts only. No effort is made to set forth rules to govern the process of judicially noticing what authorities in the field have categorized as legislative facts. The latter form of judicial notice is left to continue its evolution and application under the common law.

As one author has observed: “In practice, the line between legislative facts and adjudicative facts is often indistinct. In theory, however, the two types of facts are quite different.” W. Schroeder, Judicial Notice in Alabama, 34 Ala.L.Rev. 197, 228 (1983). Adjudicative facts, governed by this rule, are “simply the facts of the particular case.” Fed.R.Evid. 201 advisory committee’s note. These facts are normally proven by putting a witness on the stand. Judicial notice, however, permits the judge to dispense with this procedure when the facts are beyond reasonable controversy and possess a high degree of indisputability. This process is well described as follows:

“When a court or an agency finds facts concerning the immediate parties – who did what, where, when, how, and with what motive or intent – the court or agency is performing an adjudicative function, and the facts are conveniently called adjudicative.... Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses.” 2 K. Davis, Administrative Law Treatise § 15.03, at 353 (1958).

The concept of judicially noticing adjudicative facts has a long history of application in Alabama courts. See, e.g., Peebles v. Miley, 439 So.2d 137 (Ala.1983) (court judicially knows that great majority of collections are done on a contingent fee basis); Edwards v. Edwards, 333 So.2d 597 (Ala.Civ.App.1976) (upon petition to increase previously ordered child support, court judicially noticed that the buying power of the dollar had noticeably lessened since original order); Callahan v. Booth, 275 Ala. 275, 154 So.2d 32 (1963) (recognizing power to take judicial notice that there are 5, 280 feet in a mile); Cox v. Board of Trustees, 161 Ala. 639, 49 So. 814 (1909) (judicially noticing that Union troops burned buildings on the University of Alabama campus during the Civil War); Pickens County v. Jordan, 239 Ala. 589, 196 So. 121 (1940) (judicially noticing the location of a town). See also C. Gamble, McElroy’s Alabama Evidence § 480.01 (4th ed. 1991).

Legislative facts, not covered by Rule 201, are those to which a court resorts as the basis for establishing a rule of law or interpreting a statute. That spousal testimony will destroy a marriage, historically noticed as the basis for declaring one spouse incompetent to testify against the other, would be a legislative fact. See Hawkins v. United States, 358 U.S. 74 (1958). The following two authoritative descriptions, much quoted in the evidence literature, give considerable guidance in identifying legislative facts:

“My opinion is that judge-made law would stop growing if judges, in thinking about questions of law and policy, were forbidden to take into account the facts they believe, as distinguished from facts which are ‘clearly ... within the domain of the indisputable.’ Facts most needed in thinking about difficult problems of law and policy have a way of being outside the domain of the clearly indisputable.” K. Davis, A System of Judicial Notice Based on Fairness and Convenience 82 (1964).

“In determining the content or applicability of a rule of domestic law, the judge is unrestricted in his investigation and conclusion. He may reject the propositions of either party or both parties. He may consult the sources of pertinent data to which they refer, or he may refuse to do so. He may make an independent search for persuasive data or rest content with what he has or what the parties present.... [T]he parties do no more than to assist; they control no part of the process.” E. Morgan, Judicial Notice, 57 Harv. L. Rev. 269, 270-71 (1944).

Alabama courts obtain knowledge of law, both judicial and legislative, outside the proof process. The Alabama Supreme Court has characterized this practice as more in the nature of “judicial knowledge” than “judicial notice.” Rayburn v. State, 366 So.2d 708 (Ala.1979). This kind of judicial notice is not affected by Rule 201.

Section (b). Kinds of facts. Consistent with historic practice, a court is to dispense with the customary methods of proof “only in clear cases.” Fed.R.Evid. 201 advisory committee’s note. A court is to take judicial notice of adjudicative facts only when those facts are beyond reasonable dispute either because they are generally known within the court’s territorial jurisdiction or because they can be accurately and readily determined by consulting sources that are acknowledged to be accurate. This limit upon judicial notice is consistent with historic Alabama law. See, e.g., Peebles v. Miley, 439 So.2d 137 (Ala.1983) (court judicially knows that great majority of collections are done on a contingent fee basis); Strother v. Strother, 355 So.2d 731 (Ala.Civ.App.1978) (judicial notice of increases in cost of living due to inflation); Mutual Bldg. & Loan Ass’n v. Moore, 232 Ala. 488, 169 So. 1 (1936) (facts found in reliable source).

Section (c). When discretionary. Power is vested in the trial judge to take judicial notice of adjudicative facts without having been requested to do so. The judge may take such notice upon the motion of a litigant or upon the judge’s own initiative. This position is believed to reflect prior Alabama authority. See Cullman Broadcasting Co. v. Bosley, 373 So.2d 830 (Ala.1979); Byrd v. State ex rel. Colquett, 212 Ala. 266, 102 So. 223 (1924). Cf. W. Schroeder, Judicial Notice in Alabama, 34 Ala.L.Rev. 197 (1983).

Section (d). When mandatory. This section makes it mandatory for the court to take judicial notice of adjudicative facts subject to judicial notice under section (b) whenever a party requests it to do so and, with its request, supplies the court with the necessary information. It is believed that this principle is a departure from former Alabama practice, under which the taking of judicial notice has been vested largely in the trial judge’s discretion. Byrd v. State ex rel. Colquett, 212 Ala. 266, 102 So. 223 (1924). It remains fully within the trial court’s discretion, of course, as to whether it takes judicial notice upon its own initiative. See Ala.R.Evid. 201(c).

Section (e). Opportunity to be heard. Procedural fairness dictates that a party has the right to be heard regarding the court’s judicially noticing facts – both as to the propriety of taking notice and as to the nature of the facts to be noticed. This right, however, arises only upon a timely request. No formal scheme is established for determining timeliness. A party often will receive prior notice that the court may take judicial notice of a fact by being served with a copy of an opponent’s request for the court to do so or by hearing the opponent’s oral request. In other instances, such prior notice will arise from statements of the trial judge. Section (e) recognizes, however, that a party may learn only after the fact that the judge has taken judicial notice; in such a situation the “timely request” can be made after the party learns that the judge has taken judicial notice.

The procedure set up by section (e) has never been formally established by Alabama appellate decisions. This procedure, however, is fully within the spirit of Alabama’s historic principle governing judicial notice of adjudicative facts. If facts must be beyond dispute, as a condition precedent to the exercise of judicial notice, one would assume that such an issue is open to argument before the judge. See O’Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974); W. Schroeder, Judicial Notice in Alabama, 34 Ala.L.Rev. 197, 204 (1983) (drawing this same conclusion based upon implication from the preexisting Alabama rule that on appeal a party cannot assign as error the court’s taking judicial notice unless at trial the party objected to the court’s doing so).

Section (f). Time of taking notice. In accordance with prior Alabama practice, judicial notice may be exercised at any stage of the proceeding. Alabama case law is replete with examples of judicial notice having been taken at both the trial and the appellate level. See, e.g., Green v. Mutual Benefit Health & Accident Ass’n, 267 Ala. 56, 99 So.2d 694 (1957); Byrd v. State ex rel. Colquett, 212 Ala. 266, 102 So. 223 (1924).

Rule 201(d) makes judicial notice of adjudicative facts mandatory when properly requested. Section (f) makes such judicial notice exercisable at any stage of the proceeding, including on appeal. The combination of these two sections raises the question of whether an appellate court must take judicial notice of an adjudicative fact for the first time on appeal. Clear Alabama authority indicates only that the appellate courts may notice facts for the first time on appeal. Byrd v. State ex rel. Colquett, 212 Ala. 266, 102 So. 223 (1924); W. Schroeder, Judicial Notice in Alabama, 34 Ala.L.Rev. 197, 205 (1983) (cases cited therein). Other authority, however, indicates that the appellate court has the power to refuse to take judicial notice if the party requesting the court to do so failed to ask the trial court to do so. In all likelihood, this power is based upon the rule of appellate practice, separate and apart from the present evidence principle, that matters not complained of at the trial generally may not be assigned as error on appeal. See O’Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974). Section (f) is in no way intended to limit appellate authority in this regard.

Section (g). Instructing jury. Much national debate has centered upon the question of whether a court should admit evidence offered to disprove the facts that have been judicially noticed. See, e.g., J. Thayer, Preliminary Treatise on Evidence 308 (1898) (for admissibility); J. McNaughton, Judicial Notice -- Excerpts Relating to the Morgan-Whitmore Controversy, 14 Vand.L.Rev. 779 (1961) (against admissibility). At least as regards civil cases, section (g) precludes such evidence. It precludes it by requiring that the trial judge instruct the jury as to the conclusiveness of the judicially noticed facts. Compare Unif.R.Evid. 201. The committee has found no appellate authority in Alabama dealing with this issue, and no Alabama pattern jury instruction has been published concerning it.

A different rule, however, applies in criminal cases. The trial judge is to instruct the jury regarding judicial notice, but the judge is to tell the jurors that facts judicially noticed are not necessarily conclusive upon them. This distinction in treatment is due largely to the feeling that a mandatory instruction as to conclusiveness, circumscribing the jury in a criminal case, would be contrary to the spirit of the Sixth Amendment right to a jury trial. House Comm. on Judiciary, Fed. Rules of Evid., H.R. Rep. No. 650, 93d Cong., 1st Sess. 6 (1973). There is at least one appellate criminal case in Alabama indicating that a jury does not have to accept a judicially noticed fact as conclusive. Smith v. State, 373 So.2d 350 (Ala.Crim.App.1979).

Rule 301. Presumptions in general in civil actions and proceedings.

(a)   Conclusive and rebuttable presumptions. Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable.

(b)   Types of rebuttable presumptions. Every rebuttable presumption is either:

(1)   A presumption that affects the burden of producing evidence by requiring the trier of fact to assume the existence of the presumed fact, unless evidence sufficient to sustain a finding of the nonexistence of the presumed fact is introduced, in which event the existence or nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption; or

(2)   A presumption affecting the burden of proof by imposing upon the party against whom it operates the burden of proving the nonexistence of the presumed fact.

(c)   Procedural impact. Unless otherwise provided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence.

(d)   Inconsistent presumptions. If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight, neither presumption applies.

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Section (a). Conclusive and rebuttable presumptions. The law of presumptions is expansive and much debated. Virtually all discussions in this regard begin with the famous statement by Dean McCormick: “One ventures the assertion that ‘presumption’ is the slipperiest member of the family of legal terms, except for its first cousin, ‘burden of proof.’ ” E. Cleary, McCormick on Evidence § 342 (3d ed. 1984).

The first issue in this area is that of when a presumption arises. Rule 301 does not attempt to resolve this issue. Recognition of presumptions is left to statutes, case law, and other rules of court. Suffice it to say, however, that a presumption is a creature of law that assists in the matter of proof by providing that in certain situations proven facts may be strong enough that from them the trier of fact may conclude that the presumed fact exists. Presumptions may be conclusive or rebuttable. Conclusive presumptions, not governed by this Rule 301, are those applied when because of certain proven facts the law requires the finder of fact to find another – presumed – fact. On the other hand, rebuttable presumptions, found throughout the legal system, are those under which a certain quantum of evidence gives rise to an inference of some other fact, but as to which fact the opposing party may offer evidence in rebuttal. Rebuttable presumptions are generally created by law – under statutes, case law, or rules of court – for such reasons as the promotion of some public policy (as in presumptions favoring the legitimacy of children), because the presumption is based upon human experience (illustrated by the presumption against suicide), or because of the peculiarities of the case affecting the ability to produce evidence (illustrated by the statutory presumption that upon proof of certain facts a railroad is presumed negligent). Alabama Great S. R.R. v. Morrison, 281 Ala. 310, 202 So.2d 155 (1967). See C. Gamble, McElroy’s Alabama Evidence § 456.05 (4th ed. 1991).

Section (b). Types of rebuttable presumptions. Once a presumption applies in regard to an issue, it then becomes necessary to determine its procedural impact – i.e., whether it shifts to the opposing party the burden of proof or persuasion as to that issue or whether it merely shifts the burden of going forward with the evidence on that issue. When a presumption has that second effect (giving a presumption that effect is commonly referred to as applying the “bursting bubble” theory), the burden of going forward with evidence then shifts to the party against whom the presumption is directed. This burden of going forward with evidence, however, is not to be confused with the burden of proof or persuasion, which remains, unless otherwise provided by law, with the party upon whom it originally was cast. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981) (holding that employment discrimination plaintiff’s prima facie case shifts burden of going forward to the employer but does not shift to employer the burden of persuasion).

This rule rejects the principle found in Fed.R.Evid. 301 under which all presumptions, unless otherwise provided by statute or rule of evidence, are deemed to be of the bursting bubble type – i.e., those that shift the burden of going forward with the evidence but do not shift the burden of proof.

Section (c). Procedural impact. If a presumption is created by statute and the impact of the presumption is provided for in the statute, then the presumption has the impact the statute provides for. In the case of a presumption whose impact is not provided for by a statute, the court is to determine its impact by looking at the policy underlying the presumption. If that policy is merely to facilitate the proof process at trial, then the presumption is interpreted as one affecting the burden of going forward with the evidence and not as one affecting the burden of proof.

The shifting of the burden of going forward, upon the activation of a presumption, is consistent with preexisting Alabama practice. See Louisville & Nashville R.R. v. Marbury Lumber Co., 125 Ala. 237, 28 So. 438 (1900). Although not all of the presumptions applicable in Alabama do so, many of them shift to the opponent the burden of going forward, to be distinguished from the burden of proof or persuasion. Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897 (1929). See C. Gamble, McElroy’s Alabama Evidence § 451.01(5) (4th ed. 1991). In an action upon a life insurance policy, for example, the insurer has the burden of proof relative to a defense that the insured committed suicide. If the insurer offers into evidence a death certificate showing suicide as the cause of death, the burden of going forward shifts to the beneficiary, who then must introduce evidence warranting a finding that the death was not by suicide. Birmingham Trust & Sav. Bank v. Acacia Mut. Life Ass’n, 221 Ala. 561, 130 So. 327 (1930). See W.E. Shipley, Annotation, Effect of Presumption as Evidence Upon Burden of Proof, Where Controverting Evidence is Introduced, 5 A.L.R.3d 19, 27 (1966). Despite this shift, however, the overall burden of proof remains upon the defendant-insurer to reasonably satisfy the trier of fact that the death was suicide. Jefferson Standard Life Ins. Co. v. Pate, 290 Ala. 110, 274 So.2d 291 (1973) (holding that the law presumes that normal persons do not commit suicide and that the defendant insurer has burden of proving suicide). A second illustration lies in the historic principle, based upon confidence in the American postal system, that proof that a letter was properly addressed, stamped, and mailed gives rise to a presumption that it was received by the addressee. Franklin Life Ins. Co. v. Brantley, 231 Ala. 554, 165 So. 834 (1936); DeJarnette v. McDaniel, 93 Ala. 215, 9 So. 570 (1891). See E. Cleary, McCormick on Evidence § 343 (3d ed. 1984). This latter presumption is not conclusive and may be rebutted, for example, when the addressee testifies that the letter was not received. Calkins v. Vaughan, 217 Ala. 56, 114 So. 570 (1927). See also DeBardeleben v. Tynes, 290 Ala. 263, 276 So.2d 126 (1973).

Section (d). Inconsistent presumptions. There are occasions when two presumptions at work in the same case clash. When such a conflict arises, the presumption prevails which is based upon the weightier policy considerations. Cross v. Rudder, 380 So.2d 766 (Ala.1979). Should the policy weight of such presumptions be equal, neither applies. Compare Gulf States Paper Corp. v. Hawkins, 444 So.2d 381 (Ala.1983).

Rule 302. Applicability of federal law in civil actions and proceedings.

In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with federal law.

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This rule differs from Fed.R.Evid. 302 only insofar as the term “federal law” has been substituted for the term “State law.” That change makes this rule identical to that found in the Uniform Rules of Evidence. Indeed, the commentary to Unif.R.Evid. 302 explains this substitution and its resulting effect as follows:

“Parallel jurisdiction in state and federal courts exists in many instances. The modification of Rule 302 is made in recognition of this situation. The rule prescribes that when a federally created right is litigated in a state court, any prescribed federal presumption shall be applied.”

The term “federal law” may include both statutes and case law. Rule 302, however, is not intended to affect preexisting law governing what federal case law is binding upon Alabama courts.

Rule 401. Definition of “relevant evidence.”

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

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This rule is identical to the corresponding Federal Rule of Evidence and to the relevancy rule adopted by the overwhelming majority of states that have adopted modern evidence rules. The test of logical relevancy set forth in Rule 401 is a liberal one. Evidence is to be admitted if it possesses “any tendency,” in logic or experience, to lead to the fact or inference for which it is offered. The standard of probability under the rule is “more probable or less probable than it would be without the evidence.”

Rule 401 leaves unchanged the preexisting relevancy test that has applied historically under the common law of Alabama. See, e.g., Aetna Life Ins. Co. v. Lavoie, 470 So.2d 1060, 1078 (Ala.1984) (“whether the offered evidence bears any logical relationship to the ultimate inference for which it is offered”) (emphasis added), vacated, 475 U.S. 813 (1986); Gafford v. State, 122 Ala. 54, 25 So. 10, 12 (1899) (characterizing the issue as one of whether “the testimony offered to be introduced by defendant [would] have any tendency, even though slight, to shed light on the main inquiry”) (emphasis added); Mattison v. State, 55 Ala. 224, 232 (1876) (“Whatever tends to shed light on the main inquiry... is, as a general rule, admissible evidence.”); C. Gamble, McElroy’s Alabama Evidence § 21.01(l) (4th ed. 1991).

Relevancy remains a question over which the trial court has wide discretion. Eason v. Comfort, 561 So.2d 1068 (Ala.1990); Roberson v. Ammons, 477 So.2d 957 (Ala.1985); Ott v. Fox, 362 So.2d 836 (Ala.1985) (observing that the trial judge has great discretion concerning the relevancy of evidence). That discretion is not unbridled. Ham v. Hood, 340 So.2d 763 (Ala.1976). However, the trial court’s ruling on relevancy will not be reversed unless it is plain that error was committed. Harper v. Baptist Medical Center-Princeton, 341 So.2d 133 (Ala.1976). Indeed, the trial court’s ruling on relevancy will not be disturbed on appeal unless discretion has been abused. Ryan v. Acuff, 435 So.2d 1244 (Ala.1983).

Not all relevancy questions are resolved by application of the test of logic alone. The concepts of remoteness and dissimilarity, for example, continue as factors to be considered in the trial court’s discretionary determination of relevancy. Pack v. State, 461 So.2d 910 (Ala.Crim.App.1984) (dissimilarity); Kindig v. Rea, 334 So.2d 681 (Ala.1976) (remoteness); C. Gamble, McElroy’s Alabama Evidence § 21.01(2) (4th ed. 1991). Additionally, some situations recur with such frequency that they give rise to individual, specific rules of relevancy. See, e.g., Ala.R.Evid. 404(a) (setting out a general exclusionary rule regarding character evidence offered as a basis from which to infer how a person acted on the occasion at issue); Ala.R.Evid. 407 (declaring irrelevant subsequent remedial measures of a civil defendant when offered to prove antecedent negligence or culpable conduct); Ala.R.Evid. 411 (excluding evidence of a civil defendant’s liability insurance coverage when offered to prove negligence).

Rule 401 merges the separate evidentiary concepts of materiality and relevancy. No relevant evidence is to be admitted unless its logical relevancy goes toward a fact or inference that is “of consequence to the determination of the action.” By use of this phrase, Rule 401 adopts the common law materiality concept, as that concept has evolved. See C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 99 (1988); C. Gamble & G. Windle, Subsequent Remedial Measures Doctrine in Alabama: From Exclusion to Admissibility and the Death of Policy, 37 Ala.L.Rev. 547, 555 (1986) (distinguishing between materiality and relevancy in admission of post-accident safety measures). The broader phrase “of consequence,” in lieu of the common law term “material,” is adopted so as to include within the term “relevant evidence” that which is not necessarily in dispute and that which is no more than an aid to the trier of fact in understanding other facts that are material or in dispute. Charts and photographs, for example, fall into this category. See State v. Howington, 268 Ala. 574, 109 So.2d 676 (1959) (cross-examination of a witness may even pertain to irrelevant and immaterial matters as bearing on memory, accuracy, credibility, interest, or sincerity).

Rule 402. Relevant evidence generally admissible; irrelevant evidence inadmissible.

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States or that of the State of Alabama, by statute, by these rules, or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible.

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Except as modified for state practice, Rule 402 is the same as the corresponding federal rule. Additionally, it follows the pattern adopted by most states. See, e.g., Colo.R.Evid. 402; Iowa R.Evid. 402 (1983); Mich.R.Evid. 402 (1978); N.C.R.Evid. 402 (1984). But see Fla.Stat.Ann.Evid.Code § 90.402 (West.Supp.1976) (omitting last sentence under the belief that it is to be implied that irrelevant evidence is to be excluded).

This rule recognizes two primary concepts. The first is that relevant evidence is admissible while irrelevant evidence is not. This concept traditionally has been acknowledged as the foundation stone upon which any rational system of evidentiary admission and exclusion is based. J. Thayer, Preliminary Treatise on Evidence 264 (1898). The admission of relevant evidence, as well as the corresponding exclusion of irrelevant evidence, is a presupposition of present Alabama evidence law. See C. Gamble, McElroy’s Alabama Evidence § 21.01(1) (4th ed. 1991).

The second concept recognized in Rule 402 is that not all relevant evidence is admissible. The exclusion of even relevant evidence may be required by constitutional provisions, statutes, other provisions of these Alabama Rules of Evidence, and other rules promulgated by the Alabama Supreme Court. This principle is in accord with existing Alabama law and practice.

Constitutions. This rule leaves unaffected the developing case law under which certain evidence is declared inadmissible based upon constitutional considerations. Despite its relevancy, for example, evidence may be excluded if it was obtained by an unlawful search and seizure. Weeks v. United States, 232 U.S. 383 (1914). Incriminating statements of an accused are excluded when secured in violation of the constitutional right to counsel. Massiah v. United States, 377 U.S. 201 (1964). The privilege against self-incrimination is another constitutional consideration that has rendered relevant evidence inadmissible. See Ex parte Marek, 556 So.2d 375 (Ala.1989); C. Gamble, The Tacit Admission Rule: Unreliable and Unconstitutional -- A Doctrine Ripe for Abandonment, 14 Ga.L.Rev. 27 (1979); Jenkins v. Anderson, 447 U.S. 231, 249 n.2 (1980) (Marshall, J., dissenting) (citing the foregoing article).

Statutes. Relevant evidence may be excluded under an exclusionary rule found in a state or federal statute. While statutes generally expand admissibility, there are those that restrict it. See 18 U.S.C. § 2515 (1988) (making electronically intercepted communications inadmissible in both state and federal courts); Gelbard v. United States, 408 U.S. 41 (1972) (interpreting the foregoing wiretap statute as constituting an exclusionary rule of evidence). See also O’Daniel v. O’Daniel, 515 So.2d 1248 (Ala.Civ.App.1986), rev’d, 515 So.2d 1250 (Ala.1987) (recorded telephone conversations of defendant spouse, offered in a divorce action, excludable as violating federal wiretapping statute); Worsham v. Fletcher, 454 So.2d 946 (Ala.1984) (construing a police accident report statute as constituting only a partial bar to admissibility). See generally C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 124 (1988).

recognizes that material and relevant evidence may be excluded if its admission would violate some other provision of the Alabama Rules of Evidence. The trial judge may, for example, exclude relevant evidence under Rule 403 upon the ground that the relevancy of the evidence is substantially outweighed by its prejudicial impact. See United States v. Pirolli, 673 F.2d 1200 (11th Cir.), cert. denied, 459 U.S. 871 (1982) (recognizing Rule 403 as falling within the “other rules” exception of Rule 402). The Alabama Rules of Evidence contain a host of rules excluding evidence that might be argued to satisfy the test of logical relevancy found in Ala.R.Evid. 401. See, e.g., Ala.R.Evid. 404(a) (excluding character evidence when offered to prove circumstantially how one acted on the occasion in question); Ala.R.Evid. 407 (excluding evidence of subsequent remedial measures when offered to prove negligence or culpable conduct); Ala.R.Evid. 801 (excluding hearsay evidence that might otherwise be quite relevant); Ala.R.Evid. 501 (recognizing that privileges may be grounds upon which to exclude relevant evidence).

Other rules applicable in the courts of this state. The purpose of this phrase is to prevent any conflict between the Alabama Rules of Evidence and other rules promulgated by the Alabama Supreme Court. The Rules of Civil Procedure and the Rules of Criminal Procedure, for example, require the exclusion of relevant evidence in some instances. See, e.g., Ala.R.Civ.P. 30(b) and 32(a)(3) (both establishing requirements that may work to limit the admissibility of depositions).

Case law rules of exclusion for irrelevancy. Rule 402 does not mention excluding relevant evidence on the basis that to admit it would violate exclusionary principles established in case law. Some academic writers, as well as some courts, have interpreted the corresponding Fed.R.Evid. 402 as abrogating all preexisting case law rules of exclusion not restated in the adopted rules themselves. C. Wright & M. Graham, Federal Practice and Procedure: Evidence § 5199, at 222 (1978) (reviewing the legislative history of Rule 402, it is observed that “the record rather strongly suggests that Congress assumed that, except where the Evidence Rules otherwise provide, there would be no decisional law of evidence”); Jones v. Pak-Mor Mfg. Co., 700 P.2d 819 (Ariz.), cert. denied, 474 U.S. 948 (1985); State v. Williams, 388 A.2d 500, 503 (Me.1978) (holding that the general acceptance requirement of the Frey test governing the admissibility of new scientific processes is inconsistent with Rule 402). Stated differently: “Rule 402 was intended to preclude the exclusion, on common law grounds, of relevant evidence.” E. Imwinkelreid, Federal Rule of Evidence 402: The Second Revolution, 6 Rev. Litig. 129, 134 (1987). Other writers, however, have concluded that such a body of case law principles exists parallel to the adopted rules of evidence. See, e.g., D. Langum, The Hidden Rules of Evidence: Michigan’s Uncodified Evidence Law, 61 Mich. B.J. 320 (1982); J. Patterson, Evidence of Prior Bad Acts: Admissibility Under the Federal Rules, 38 Baylor L. Rev. 331 (1986). Yet others advocate that the courts may continue to apply exclusionary case law concepts by incorporating them as necessary parts of relevancy under Rule 401 or exclusion for prejudice under Rule 403. See D. Langum, Uncodified Federal Evidence Rules Applicable to Civil Trials, 19 Willamette L. Rev. 513, 516 (1983).

The Alabama Supreme Court is free, of course, to reexamine the wisdom of exclusionary case law lying outside the Alabama Rules of Evidence themselves. Nothing in Rule 402 is intended to restrict this freedom.

Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

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This rule is identical to its counterpart under the Federal Rules of Evidence. It generally expresses the preexisting common law of Alabama that material and relevant evidence may be excluded when the trial judge determines that the probative value of the evidence is outweighed substantially by other factors, such as the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. Valley Mining Corp. v. Metro Bank, 383 So.2d 158 (Ala.1980). See C. Gamble, McElroy’s Alabama Evidence § 21.01 (4th ed. 1991).

The judge is to place the probative value or relevancy of evidence on one side of imaginary scales and its prejudicial impact on the other. When the prejudicial impact substantially outweighs the probative value, then the evidence may be excluded. See, e.g., Otwell v. Bryant, 497 So.2d 111 (Ala.1986) (affirming trial court’s precluding plaintiff from asking defendant physician’s expert if the physician and the expert were insured by the same mutual liability insurance company; prejudice held to outweigh probative value to show bias); Hargress v. City of Montgomery, 479 So.2d 1137 (Ala.1985) (evidence of collateral misconduct excluded because its prejudicial effect substantially outweighed its probative value); Ott v. Smith, 413 So.2d 1129 (Ala.1982) (declaring that evidence “of highly prejudicial nature” may be excluded); Sanders v. State, 512 So.2d 809 (Ala.Crim.App. 1987); Jones v. State, 473 So.2d 1197 (Ala.Crim.App.1985) (highly prejudicial).

Exclusion based upon the court’s conclusion that the probative value is outweighed by confusion of the issues and misleading the jury finds ample support in preexisting common law. See, e.g., Cherry v. Hill, 283 Ala. 74, 214 So.2d 427 (1968) (describing this confusion-of-the-issues ground of exclusion as precluding the introduction of “foreign matters” into the trial); Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944) (confusion-of-the-issues concept identical to “multiplication of the issues”); Murray v. Alabama Power Co., 413 So.2d 1109 (Ala.1982) (proper to exclude evidence when it will work more to divert attention of the jury than to provide probative worth); Fincher v. State, 58 Ala. 215 (1877) (exclusion based upon the tendency of the evidence to mislead the jurors by distracting their attention from the main fact in issue).

Undue delay, waste of time, and needless presentation of cumulative evidence serve as other grounds upon which the trial court may exclude relevant evidence. The power to exclude evidence upon these grounds is vested in the court’s discretion under preexisting Alabama practice and is dealt with under a concept customarily referred to as “cumulativeness.” Chambers v. Culver, 289 Ala. 724, 272 So.2d 236 (1973). See C. Gamble, McElroy’s Alabama Evidence § 10.06 (limiting the number of witnesses to a matter), § 10.07 (cumulative evidence), § 10.08 (limiting argument of counsel) (4th ed. 1991). The discretion to exclude such evidence, however, is not without limits. Sweatman v. FDIC, 418 So.2d 893 (Ala.1982) (indicating that the discretion to refuse cumulative evidence is not unlimited). See B.H. Glenn, Annotation, Propriety and Prejudicial Effect of Trial Court’s Limiting Number of Character or Reputation Witnesses, 17 A.L.R.3d 327 (1968); B.H. Glenn, Annotation, Limiting Number of Noncharacter Witnesses in Criminal Cases, 5 A.L.R.3d 238 (1966).

Issues arising under Rule 403 are those about which much discretion continues to be vested in the trial judge. Ott v. Smith, 413 So.2d 1129 (Ala.1982) (recognizing that such a decision is largely within the trial court’s discretion). See W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 4-3 (1987). As with issues of relevancy, the exercise of this discretion will not be reversed on appeal, unless the discretion has been abused. AmSouth Bank, N.A. v. Spigener, 505 So.2d 1030 (Ala.1986) (holding that questions of materiality, relevancy, and remoteness rest largely with the trial judge and that rulings thereon will not be disturbed unless the judge’s discretion has been abused).

Rule 404. Character evidence not admissible to prove conduct; exceptions; other crimes, wrongs, or acts.

(a)   Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1)   CHARACTER OF ACCUSED. In a criminal case, evidence of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2)(A)(i), evidence of the same trait of character of the accused offered by the prosecution;

(2)   CHARACTER OF VICTIM.

(A)   In Criminal Cases. (i) Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or (ii) evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

(B)   In Civil Cases. Evidence of character for violence of the victim of assaultive conduct offered on the issue of self-defense by a party accused of assaultive conduct, or evidence of the victim’s character for peacefulness to rebut the same. Whenever evidence of character for violence of the victim of assaultive conduct, offered by a party accused of such assaultive conduct, is admitted on the issue of self-defense, evidence of character for violence of the party accused may be offered on the issue of self-defense by the victim and evidence of the accused party’s character for peacefulness may be offered to rebut the same.

(3)   CHARACTER OF WITNESS. Evidence of the character of a witness, as provided in Rules 607, 608, 609, and 616.

(b)   Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. [Amended 8-15-2013, eff. 10-1-2013.] Advisory Committee’s Notes

This rule undertakes to answer the basic question of when evidence of character may be admissible. Once character evidence is determined to be admissible under (a), one generally must consult Ala.R.Evid. 405 for the appropriate medium through which the character may be proven – i.e., reputation, opinion, or conduct. It is intended that Rule 404(b) will be applicable in civil as well as criminal cases.

Section (a). Character evidence generally. Rule 404, like its federal counterpart, begins with what may be termed a “general exclusionary rule of character.” As a general rule, whether in civil or criminal cases, character evidence is not admissible when offered to prove that a person is of a particularly good or bad character and that the person acted in conformity with that character on the occasion that is the basis of the litigation. This exclusionary rule has been long recognized in Alabama case law. See C. Gamble, Character Evidence: A Comprehensive Approach 3 (1987). In a criminal case, for example, the prosecution may not take the initiative to prove the accused’s bad character as a basis for the jury to infer that the accused committed the now-charged crime. Ex parte Cofer, 440 So.2d 1121 (Ala.1983); Ex parte Killough, 438 So.2d 333 (Ala.1983); C. Gamble, McElroy’s Alabama Evidence § 27.02(1) (4th ed. 1991). Likewise, a party to a civil action may not prove an opponent’s bad character for negligence as a basis for the factfinder to infer that the opponent was negligent on the occasion that serves as the basis of the cause of action. Smith v. Civil Service Bd. of the City of Florence, 52 Ala.App. 44, 289 So.2d 614 (1974); Babcock v. Smith, 285 Ala. 557, 234 So.2d 573 (1970).

Subsection (a)(1). Character of accused. The criminally accused is provided special dispensation from the general exclusionary rule regarding character. Under the power historically granted by a principle that has come to be termed the “mercy rule,” the criminal defense may prove the accused’s good character. The accused’s evidence of good character may serve as circumstantial proof that the accused did not commit the crime charged. Michelson v. United States, 335 U.S. 469, 479 (1948).

This right of the defense to prove the accused’s good character, as evidence of innocence, has long existed under Alabama law. See, e.g., Beaird v. State, 215 Ala. 27, 109 So. 161 (1926); Felix v. State, 18 Ala. 720 (1851). See also C. Gamble, Character Evidence: A Comprehensive Approach 48 (1987). The mediums of proof through which the accused may evidence good character remain unchanged. The criminal defendant will continue to be permitted to prove good character through general reputation as a whole. Elmore v. State, 216 Ala. 247, 113 So. 33 (1927); C. Gamble, McElroy’s Alabama Evidence § 27.01(2) (4th ed. 1991). Contra Fed.R.Evid. 404(a)(1). The defense, of course, may limit reputation testimony to a trait that is pertinent to the crime charged. However, this is not required. Unlike the corresponding Federal Rule of Evidence, this rule does not permit a character witness to give an opinion of the accused’s character. The character witness may testify as to reputation only. Jones v. State, 53 Ala.App. 690, 304 So.2d 34, cert. denied, 293 Ala. 261, 304 So.2d 38 (1974). See C. Gamble, McElroy’s Alabama Evidence § 27.01(1) (4th ed. 1991).

If the criminal defense chooses to prove the accused’s good character through one of the permissible mediums, the prosecution may rebut with evidence of bad character. That right of rebuttal has received historic recognition under Alabama evidence law. Bedsole v. State, 274 Ala. 603, 150 So.2d 696 (1963); Pierce v. State, 228 Ala. 545, 154 So. 526 (1934). The rebuttal evidence, like the accused’s evidence of good character, must be offered through the medium of reputation. Because the mercy rule is a right of special dispensation afforded the criminal defendant, the defendant is allowed some measure of power to limit the breadth of the rebuttal. When the defense offers proof of the accused’s reputation for a particular trait, for example, the rebuttal testimony should be confined to the same trait or to a similar one. Thorn v. State, 450 So.2d 179 (Ala.Crim.App.1984); Martin v. State, 90 Ala. 602, 8 So. 858 (1891), overruled by Williams v. State, 140 Ala. 10, 37 So. 228 (1903).

It should be noted that the accused does not open the door for the prosecution to offer evidence of bad character, as set forth in Rules 404(a)(1) and 405(a), by taking the witness stand in his or her own behalf. Such testimony by the accused, however, would subject the accused to impeachment. Ala.R.Evid. 404(a)(3).

Subsection (a)(2). Character of victim. This subsection, as does its counterpart under the Federal Rules of Evidence, permits evidence of a victim’s character. It provides another exception to the Rule 404(a) exclusion under which evidence of a person’s character is generally excluded when offered to prove that the person acted in conformity therewith on a particular occasion. As to a victim of rape or assault with intent to rape, it is important to note that any Rule 404(a)(2) principles are preempted by contrary provisions found in the “rape shield” principle of Rule 412.

Admissibility of a victim’s character generally arises in both criminal and civil cases as described hereinafter.

(A)   In criminal cases. In a criminal case, the accused may offer evidence that a victim of an alleged crime had a pertinent trait. Such evidence usually is offered in cases of homicide or assault where the accused pleads self-defense. In these cases, the character evidence is offered as a base from which circumstantially to infer that the victim was the first aggressor. Additionally, and not by virtue of the present rule, evidence that the victim had a bad character may go to show that the accused had reasonable grounds upon which to apprehend that the victim was about to do the accused immediate and serious bodily harm.

Generally, the evidence of a victim’s character allowed by this subsubsection must be in the form of testimony regarding reputation or testimony stating an opinion, in accordance with Rule 405(a). See Government of the Virgin Islands v. Carino, 631 F.2d 226 (3d Cir.1980); United States v. Kills Ree, 691 F.2d 412 (8th Cir.1982); E. Cleary, McCormick on Evidence § 193 (3d ed. 1984). Compare Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955) (holding that the accused in a homicide case may not prove the victim’s bad character via specific prior acts of misconduct); C. Gamble, McElroy’s Alabama Evidence § 26.01(1) (4th ed. 1991). Such proof would come through the testimony of a character witness for the defense who relates either the victim’s general reputation for a pertinent trait or the witness’s own opinion of the victim’s character for the pertinent trait.

Alabama case law permits a person charged with homicide or assault to prove, in support of a self-defense claim, that the alleged victim had a bad general reputation for violence. Williams v. State, 506 So.2d 368 (Ala.Crim.App.1986), cert. denied, 506 So.2d 372 (Ala.1987); Bankston v. State, 358 So.2d 1040 (Ala.1978). See also C. Gamble, McElroy’s Alabama Evidence § 33.01(1) (4th ed. 1991); H. Henry, Annotation, Admissibility of Evidence as to Other’s Character or Reputation for Turbulence on Question of Self-Defense by One Charged With Assault or Homicide, 1 A.L.R.3d 571 (1965). Unlike preexisting Alabama law, however, Rule 404(a)(2) contains no requirement that, as a condition precedent to admitting proof of the victim’s character for a pertinent trait, other evidence in the case must tend to show that the accused acted in self-defense. See Smith v. State, 466 So.2d 1026 (Ala.Crim.App.1985); Wright v. State, 252 Ala. 46, 39 So.2d 395 (1949). Allowing the accused to prove the victim’s character for a pertinent trait via a witness’s opinion, as opposed to proof in the form of general reputation, would be new to Alabama law. This rule would have no effect upon that body of Alabama law allowing the admission, under appropriate circumstances, of evidence of collateral difficulties between the victim and the accused. See, e.g., Walker v. State, 523 So.2d 528 (Ala.Crim.App.1988); Akers v. State, 399 So.2d 929 (Ala.Crim.App.1981). See also C. Gamble, McElroy’s Alabama Evidence § 45.06 (4th ed. 1991). Likewise unaffected is that line of Alabama precedent under which the accused in a homicide or assault case, where there is evidence of self-defense, may offer evidence that the victim had made prior threats to injure the one now accused. See Rutledge v. State, 88 Ala. 85, 7 So. 335 (1889). See also C. Gamble, McElroy’s Alabama Evidence § 262.01(9) (4th ed. 1991); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 4-4 (1987).

Once the accused has offered evidence to prove the victim’s character for a pertinent trait, the victim’s character for that trait then becomes material. Such materiality opens the door for the prosecution to present its own evidence of the victim’s character that tends to rebut the evidence offered by the defense. This right of rebuttal has historically been afforded the prosecution in Alabama. The only change in that rebuttal right made by Rule 404(a)(2) is to permit, in appropriate instances, evidence of the victim’s character to be offered in the form of opinion evidence. See Dockery v. State, 269 Ala. 564, 114 So.2d 394 (1959); Jimmerson v. State, 133 Ala.18, 32 So. 141 (1902).

Under Rule 404(a)(2)(A)(i), in any homicide prosecution, where the accused claims self-defense and offers evidence that the victim was the first aggressor, the door is open for the state to rebut with evidence of the victim’s character for peacefulness. Unlike Rule 404(a)(2)(A)(i), which permits rebuttal with evidence of the victim’s character only after the accused has offered evidence of the victim’s character, Rule 404(a)(2)(A)(ii) allows the prosecutor to prove that the victim possessed the trait of peacefulness, no matter what kind of evidence is used by the accused to prove that the victim was the first aggressor in support of a claim of self-defense in a homicide case. The triggering evidence that permits rebuttal by evidence of the victim’s character could be evidence of nothing more than a prior threat by the victim against the accused. See 1A J. Wigmore, Wigmore on Evidence § 63 (Tillers rev. 1983); E. Cleary, McCormick on Evidence § 193 (3d ed. 1984). This right of rebuttal is new to the law of Alabama; heretofore, only when the accused has presented evidence that the victim was of bad character has the prosecution been free to offer evidence of good character to rebut the evidence that the victim had been the first aggressor. See C. Gamble, McElroy’s Alabama Evidence § 33.03(1), 33.03(5) (4th ed. 1991).

(B)   In civil cases. Rule 404(a)(2)(A) applies only to criminal cases. Rule 404(a)(2)(B), on the other hand, affirms the preexisting line of Alabama authority that permits the civil defendant, when self-defense is at issue, to present evidence that an assault victim had a bad general reputation in regard to peace and quiet, violence, or similar trait. Butler v. Hughes, 264 Ala. 532, 88 So.2d 195 (1956); Cain v. Skillin, 219 Ala. 228, 121 So. 521 (1929). See also C. Gamble, McElroy’s Alabama Evidence §§ 33.01(1), 34.01 (4th ed. 1991). Under Rule 404(a)(2)(B), the victim’s character for a pertinent trait is also provable via the character witness’s opinion. See Ala.R.Evid. 405(a).

Subsection (a)(3). Character of witness. This subsection, like its counterpart under the Federal Rules of Evidence, recognizes a third exception to the Rule 404(a) principle calling for the general exclusion of character evidence. Such evidence is admissible when relevant to the credibility of a witness, as provided in Rules 607, 608, 609, and 616. This admissibility of character evidence for impeachment is consistent with preexisting Alabama law. See C. Gamble, Character Evidence: A Comprehensive Approach 56 (1987) (observing that whenever a witness takes the stand, whether the witness is a party or not, a limited aspect of the witness’s character is placed in issue – i.e., propensity for telling the truth). See also Smitherman v. State, 521 So.2d 1050 (Ala.Crim.App.1987), cert. denied, 521 So.2d 1062 (Ala.1988); C. Gamble, McElroy’s Alabama Evidence § 140.01 (dealing with impeachment by evidence of reputation), and § 145.01 (dealing with impeachment by evidence of a criminal conviction) (4th ed. 1991).

Section (b). Other crimes, wrongs, or acts. Rule 404(a) establishes the concept, applicable in both criminal and civil cases, that evidence of collateral conduct generally is inadmissible when offered to prove that the person committing the conduct is of a certain character and, consequently, acted in keeping with that character on the occasion of the act now at issue in the litigation. Section (b), like its federal counterpart, makes a specific application of the general principle of Rule 404(a); it provides specifically that evidence of collateral crimes, wrongs, or other acts is not admissible to prove character as a basis for implying that conduct on a particular occasion was in conformity with it. Such a general exclusionary rule, applicable to character evidence in the form of specific conduct, has long been embraced by the evidence law of Alabama. See, e.g., Ex parte Killough, 438 So.2d 333 (Ala.1983) (first appellate decision specifically recognizing McElroy language referring to this as a “general exclusionary rule”); Jackson v. Lowe, 48 Ala.App. 633, 266 So.2d 891 (1972) (recognizing application of this general exclusionary rule in civil cases); Roberson v. Ammons, 477 So.2d 957 (Ala.1985). See also C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (recognizing the general exclusionary rule as applied in criminal cases) and § 34.01 (discussing the general exclusionary rule applied in civil cases) (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 4-4 (1990) (discussing the general exclusionary rule and ways to circumvent it).

The general rule excluding character evidence does not bar evidence of specific acts when that evidence is offered for some purpose other than the impermissible one of proving action in conformity with a particular character. While section (b) does not purport to provide an exhaustive listing of proper purposes, it states that proper purposes may include proving such things as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Admitting evidence of specific conduct for a limited purpose, other than to prove character and conformity therewith, is consistent with preexisting Alabama law in both criminal and civil cases. Sessions Co. v. Turner, 493 So.2d 1387 (Ala.1986) (other misrepresentations held admissible to prove prerequisite knowledge in fraud case); Averette v. State, 469 So.2d 1371 (Ala.Crim.App.1985) (evidence admissible in criminal case to prove knowledge); Ex parte Cofer, 440 So.2d 1121 (Ala.1983) (dealing with intent as a purpose for admitting evidence of the accused’s collateral crimes); Nicks v. State, 521 So.2d 1018 (Ala.Crim.App. 1987) (evidence of other crimes admissible to prove plan, design, or scheme), aff’d, 521 So.2d 1035 (Ala.), cert. denied, 487 U.S. 1241 (1988); Ford v. State, 514 So.2d 1057 (Ala.Crim.App.) (dealing with motive as a permissible purpose for admitting evidence of the accused’s collateral crimes), cert. denied, 514 So.2d 1060 (Ala.1987); Ex parte Arthur, 472 So.2d 665 (Ala.1985) (containing an instructive discussion of the identity purpose). See also C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1978, 40 Ala.L.Rev. 95, 126 (1988); C. Gamble, Character Evidence: A Comprehensive Approach 14 (1987); W. Schroeder, Evidentiary Use in Criminal Cases of Collateral Crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala.L.Rev. 241 (1984); C. Gamble, Prior Crimes as Evidence in Present Criminal Trials, 1 Campbell L. Rev. 1 (1979); E. Zipp, Annotation, Admissibility of Evidence of Other Crimes, Wrongs or Acts Under Rule 404(b) of Federal Rules of Evidence, in Civil Cases, 64 A.L.R.Fed. 648 (1983).

The “provided” clause of section (b) requires pretrial notice to the accused of the prosecution’s intent to use evidence of collateral misconduct. This “provided” clause is based upon an amendment to the corresponding federal rule adopted in 1991. See Fed.R.Evid. 404(b).

Advisory Committee’s Notes to Amendment to Rule 404(a) Effective October 1, 2013

Subsection (a)(1). Character of Accused. Two amendments have been made to subsection (a)(1) of Rule 404. First, the rule has been amended to clarify that the “mercy rule,” as set forth in subsection (a)(1), does not apply in civil cases. The amendment resolves any dispute that has or may arise in caselaw over whether the exception in Rule 404(a)(1) permits the use of circumstantial character evidence in civil cases. The use of circumstantial character evidence is generally discouraged because it carries serious risks of prejudice, confusion, and delay. See Michelson v. United States, 335 U.S. 469, 476 (1948) (”The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.”). In criminal cases, the so-called “mercy rule” permits a criminal defendant to introduce evidence of pertinent character traits of the defendant and the victim. See C. Gamble, Gamble’s Alabama Rules of Evidence § 404(a)(1)(A) (2d ed. 2002); 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 27.01 (6th ed. 2009). But that is because the accused, whose liberty is at stake, may need ”some counterweight against the strong investigative and prosecutorial resources of the government.” C. Mueller & L. Kirkpatrick, Evidence: Practice Under the Rules § 4.12, p. 186 (3d ed. 2009). See also H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. Pa. L. Rev. 845, 855 (1982) (the rule prohibiting use of circumstantial character evidence ”was relaxed to allow the criminal defendant with so much at stake and so little available in the way of conventional proof to have special dispensation to tell the fact-finder just what sort of person he really is”). Those concerns do not apply to parties in civil cases.

Nothing in the amendment is intended to affect the scope of Rule 404(b). Although Rule 404(b) refers to the “accused,” the “prosecution,” and a “criminal case,” it does so only in the context of a notice requirement. The admissibility standards of Rule 404(b) remain fully applicable to both civil and criminal cases.

The second amendment to Rule 404(a)(1) provides that when the accused attacks the character of an alleged victim under Rule 404(a)(2)(A)(i), the door is opened to an attack on the same character trait of the accused. See Fed. R. Evid. 404(a)(1) (Advisory Committee’s Notes). Current law does not allow the prosecution to introduce negative character evidence of the accused unless the defense first introduces evidence of the accused’s good character. See 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 27.02(1) (6th ed. 2009) (”The prosecution generally may not take the initiative, in its case in chief, to introduce any kind of evidence as to the accused’s bad character in order to show conformity with that character on the occasion of the charged crime.”).

The amendment makes clear that the accused cannot attack the alleged victim’s character and yet remain shielded from the disclosure of equally relevant evidence concerning the same character trait of the accused. For example, in a murder case with a claim of self-defense, the accused, to bolster this defense, might offer evidence of the alleged victim’s violent disposition. If the prosecution has evidence that the accused has a violent character, but is not allowed to offer that evidence as part of its rebuttal, the jury has only part of the information it needs for an informed assessment of the probabilities as to who was the initial aggressor. Thus, the amendment is designed to permit a more balanced presentation of character evidence when an accused chooses to attack the character of the alleged victim. See Fed. R. Evid. 404(a)(1) (Advisory Committee’s Notes).

The amendment does not affect the admissibility of evidence of specific acts of uncharged misconduct offered for a purpose other than proving character under Rule 404(b). Nor does it affect the standards for proof of character by evidence of other sexual behavior or sexual offenses under Rule 412.

The amendment does not permit proof of the accused’s character if the accused merely uses character evidence for a purpose other than to prove the alleged victim’s propensity to act in a certain way. See Brooks v. State, 263 Ala. 386, 82 So. 2d 553 (1953) (victim’s reputation admitted as tending to show accused’s apprehension of peril); 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 63.01 (6th ed. 2009); and C. Gamble, Gamble’s Alabama Rules of Evidence § 404(a)(2)(A) (2d ed. 2002) (practice pointer #6). Finally, the amendment does not permit proof of the accused’s character when the accused attacks the alleged victim’s character as a witness under Rule 608 or Rule 609.

It should be noted that Rule 405(a), which regulates appropriate methods for proving character, has also been amended. Rule 405(a), as amended, adds opinion as an available method for proving the accused’s character pursuant to Rule 404(a)(1). See Ala. R. Evid. 405(a) (Advisory Committee’s Notes).

Subsection (a)(2)(B). Character of Victim in Civil Cases. As noted above, Rule 404(a)(1) has been amended to provide that when the accused in a criminal case attacks the character of an alleged victim under Rule 404(a)(2)(A)(i), the door is opened to an attack on the same character trait of the accused. Ala. R. Evid. 404(a)(1); see Fed. R. Evid. 404(a)(1) (Advisory Committee’s Notes). Without this evidence, as a matter of fairness, it was thought that the jury would possess only part of the information needed for an informed assessment of the probabilities as to who was the initial aggressor. As a similar means of fairness, Rule 404(a)(2)(B) is amended to provide that when a civil party pleading self-defense is permitted to prove the assault victim’s bad character for violence, then the door is opened for the opposing party to prove the assaulting party’s character for violence and for the assaulting party to rebut such evidence with evidence of his or her good character for peacefulness.

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 405. Methods of proving character.

(a)   Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b)   Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.

[Amended 8-15-2013, eff. 10-1-2013.]

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This rule tracks verbatim the corresponding federal rule, except to add the language “except under Rule 404(a)(1).” It establishes the permissible forms of evidence through which one is allowed to prove character or a trait of character. These are reputation, opinion, and specific instances of conduct.

Section (a). Reputation. In all cases where evidence of character or a trait of character is admissible, it may be proven through the medium of reputation. This is consistent with preexisting Alabama law. When the defense chooses to prove the accused’s good character, for example, it may do so through evidence of general reputation. Beaird v. State, 215 Ala. 27, 109 So. 161 (1926); Jones v. State, 514 So.2d 1060 (Ala.Crim.App.), cert. denied, 514 So.2d 1068 (Ala.1987). See 1A J. Wigmore, Wigmore on Evidence § 56 (Tillers rev. 1983); C. Gamble, McElroy’s Alabama Evidence § 27.01(2) (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 4.4(b) (1990). To be admissible, evidence of reputation must meet several foundational prerequisites. These requirements are unaffected by the adoption of this rule. See, e.g., Steele v. State, 389 So.2d 591 (Ala.Crim.App.1980) (dealing with definition of the term “community,” which must be used whenever one asks a question calling for evidence of reputation); C. Gamble, McElroy’s Alabama Evidence § 26.02 (4th ed. 1991) (dealing with foundational requirements, such as the contacts of the witness and the person whose reputation is in question with the community from which the reputation is drawn). See also C. Gamble, Character Evidence: A Comprehensive Approach 2 (1987).

Opinion. Whenever evidence of a person’s character is admissible, that evidence may be in the form of a witness’s opinion of the person’s character, except when the defense is proving an accused’s good character or the prosecution is rebutting an accused’s evidence of good character. This use of opinion evidence is new to the law of Alabama. Historically, the character witness has been limited to relating general reputation in the community.

Any witness who has testified on direct examination to another’s character is subject to cross-examination regarding his or her testimony. A significant aspect of this witness’s cross-examination is the historic right to ask the reputation witness if the witness has heard of an act, committed by the subject person, that is inconsistent with the character the witness has testified to on direct examination. Traditional common law has required that such a question contain the words “have you heard.” The witness could not be asked about personal knowledge of such conduct. Noel v. State, 161 Ala. 25, 49 So. 824 (1909); Peoples v. State, 510 So.2d 554 (Ala.Crim.App.1986), aff’d, 510 So.2d 574 (Ala.), cert. denied, 484 U.S. 933 (1987). See C. Gamble, McElroy’s Alabama Evidence §§ 27.01(6), 26.01(17) (4th ed. 1991); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 4-5(c)(2)(A) (1987). Rule 405 permits the cross-examiner to omit the “have you heard” phrase and to inquire as to the witness’s personal knowledge of specific conduct that is relevant to the character testified to on direct examination.

Section (b). Specific instances of conduct. A third form of character evidence, specific instances of conduct, is recognized in those cases where the character of a person is an essential element of a charge, claim, or defense. This represents conventional common law doctrine in both Alabama and the United States as a whole. See E. Cleary, McCormick on Evidence § 187 (3d ed. 1984); C. Gamble, McElroy’s Alabama Evidence § 34.01 (4th ed. 1991). In a civil action based upon negligent entrustment of an automobile, for example, the character of the bailee is an essential element of the claim; evidence of the bailee’s negligent driving is admissible against the bailor to show the bailee’s incompetence or the bailor’s knowledge of the bailee’s incompetence. Mason v. New, 475 So.2d 854 (Ala.1985); Bruck v. Jim Walter Corp., 470 So.2d 1141 (Ala.1985); C. Gamble, Character Evidence: A Comprehensive Approach § 28 (1987). See also E. Cleary, McCormick on Evidence § 18 (3d ed. 1984) (defamation action dealing with admissibility of evidence of specific acts of allegedly defamed person where defensive pleading of truth renders character at issue).

This concept of character as an essential element of the defense is perhaps best illustrated on the criminal side by a plea of entrapment. Such a plea is held to make the accused’s propensity for committing the kind of act charged an essential element and thereby opens the door to evidence of collateral relevant misconduct. See Jackson v. State, 384 So.2d 134 (Ala.Crim.App.1979) (recognizing that the accused, by pleading entrapment, opens up inquiry into character or predisposition to commit the kind of crime for which the accused is being prosecuted), cert. quashed, 384 So.2d 140 (Ala.1980), overruled by Lambeth v. State, 562 So.2d 575 (Ala.1990). See also C. Gamble, Prior Crimes as Evidence in Present Criminal Trials, 1 Campbell L.Rev. 1 (1979); W. Schroeder, Evidentiary Use in Criminal Cases of Collateral Crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala.L.Rev. 241 (1984); C. Gamble, McElroy’s Alabama Evidence § 69.01(13) (4th ed. 1991).

Advisory Committee’s Notes to Amendment to Rule 405(a) Effective October 1, 2013

Rule 404(a)(1), Ala. R. Evid., provides that the criminal defense may prove the accused’s good character as substantive proof from which to infer that the accused did not commit the crime in question. Additionally, the prosecution may offer evidence of the accused’s bad character in rebuttal. Prior to this amendment, Rule 405(a) provided that the only medium of proof available to the defense or the prosecution to prove such character was evidence of the accused’s general reputation. Jolly v. State, 858 So. 2d 305, 312 (Ala. 2002); see C. Gamble, Gamble’s Alabama Rules of Evidence § 404(a)(1)(A) (2d ed. 2002); and 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 27.01(1) (6th ed. 2009). This amounted to a rejection of Fed. R. Evid. 405(a), under which opinion evidence is allowed as an alternate medium for proving the accused’s character. In fact, precluding a character witness from giving an opinion of the accused’s character likewise amounted to a rejection of the version of Rule 405(a) that was contained in the initially proposed and circulated version of the Alabama Rules of Evidence. See Order of Supreme Court of Alabama, Apr. 27, 1993, Ala. R. Evid. 405(a) (proposed) (found in 615 So. 2d Advance Sheets No. 2 (May 13, 1993)). Therefore, the purpose of the present amendment is to make available to the criminal defense, when exercising the right to prove the accused’s good character under the mercy rule, as authorized under Ala. R. Evid. 404(a)(1), the medium of opinion evidence as an alternative to reputation evidence.

This additional medium of opinion as to the accused’s character is also available to the prosecution in rebuttal. See Ala. R. Evid. 404(a)(1). Because the prosecution’s character proof, authorized under Rule 404(a)(1), is in rebuttal to evidence presented during the defense’s case-in-chief, the Committee expects that the scope and nature of the medium of the accused’s evidence of good character will continue, as under preexisting caselaw, to generally form the parameters of the medium of the state’s rebuttal evidence regarding bad character. C. Gamble, Gamble’s Alabama Rules of Evidence § 404(a)(1)(B) (2d ed. 2002). See Ala. R. Evid. 404(a)(1) (Advisory Committee’s Notes) (because the mercy rule is a right of special dispensation afforded the criminal defendant, the defendant is allowed some measure of power to limit the breadth of rebuttal).

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 406. Habit; routine practice.

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

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This rule is identical to Rule 406 of the Federal Rules of Evidence. The principle of relevancy expressed in this rule constitutes an exception to the general provision in Ala.R.Evid. 404(a) that character is not provable as a basis from which to infer how one acted on a particular occasion. A specialized application of the general exclusionary rule precludes the admission of evidence of a person’s prior acts offered to prove that the person is of a certain character and acted in keeping with that character on a particular occasion. If these collateral acts, however, are of sufficient similarity and repetition to constitute a habit, then Rule 406 makes them admissible to prove conduct on a particular occasion. This rule regarding habit is consistent with preexisting Alabama law. See Dothard v. Cook, 333 So.2d 576 (Ala.1976); C. Gamble, Character Evidence: A Comprehensive Approach 13 (1987); C. Gamble, McElroy’s Alabama Evidence § 42.01 (4th ed. 1991).

Equivalent collateral conduct of an organization, sometimes designated at common law as “custom,” is referred to in this rule as “routine practice of an organization.” Such organizational practice, consistent with preexisting Alabama law, is relevant to prove conduct on the occasion being litigated. Ex parte McClarty Constr. & Equip. Co., 428 So.2d 629 (Ala.1983).

Rule 406 offers no precise standard for determining how many times an act must be repeated, or how consistently behavior must be shown, in order for the act or the behavior to attain the status of habit. The committee assumes that the judiciary will continue to emphasize the concept that “habit” requires a regular response to a repeated situation. See Pacific Mut. Life Ins. Co. v. Yeldell, 36 Ala.App. 652, 62 So.2d 805 (1953); Wilson v. Volkswagen of Am., Inc., 561 F.2d 494 (4th Cir. 1977), cert. denied, 434 U.S. 1020 (1978). As Professor McCormick so perceptively observed:

“A habit... is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic.” E. Cleary, McCormick on Evidence § 195 (2d ed. 1972) (emphasis added).

Some case law authority, not a model of clarity, requires proof of certain conditions precedent to the admission of evidence regarding a person’s habit or an organization’s routine practice. For example, evidence of an organization’s custom has been held inadmissible unless that evidence is corroborated by other evidence. See M. Slough, Relevancy Unraveled, 5 Kan.L.Rev. 404, 449 (1957). Habit evidence has been held inadmissible to prove that a person was not contributorily negligent, unless it is first shown that there were no eyewitnesses to the event on which the claim of contributory negligence is based. See, e.g., Montgomery Light & Traction Co. v. Devinney, 200 Ala. 135, 75 So. 883 (1917); Cereste v. New York, New Haven & Hartford R.R., 231 F.2d 50 (2d Cir.), cert. denied, 351 U.S. 951 (1956); Recent Cases –Evidence –Relevancy –Admission of Habit Evidence to Show Due Care, 10 Vand.L.Rev. 447 (1957). Rule 406 abandons both the corroboration and the “no eyewitness” requirements. See C. Gamble, McElroy’s Alabama Evidence § 42.01(6) (4th ed. 1991); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 4-6(a) (1987) (suggesting that recent judicial silence may indicate that the “no eyewitness” requirement had already been abandoned under pre-rules Alabama law).

Collateral conduct of a party in a civil action may be admissible for the relevant purpose of showing design or plan. See Ala.R.Evid. 404(b). Nothing in Rule 406 is to be taken as requiring that such collateral conduct must constitute a habit in order to be admissible.

Most of the case law involving habit has arisen in civil cases. Nothing, however, precludes its recognition in criminal cases. Occasionally, the prosecution in a criminal case will offer evidence of the accused’s collateral misconduct as a basis for the factfinder to infer that the accused had a habit of committing the kind of crime with which the accused is presently charged. If such evidence is to be admitted, it customarily should be admitted for the purpose of proving plan as an exception to Rule 404(b) rather than under Rule 406. See United States v. Mascio, 774 F.2d 219, 221-22 (7th Cir.1985); C. Wright & M. Graham, Federal Practice and Procedure: Evidence § 5273 (1980) (observing that “while there may be cases in which the commission of crime in a particular way can properly be considered to be a habit, in most cases it would seem better to admit the evidence under Rule 404(b) rather than stretch Rule 406 to cover it”). But see United States v. Luttrell, 612 F.2d 396 (8th Cir.1980) (in a prosecution for failure to file tax returns in 1974 and 1975, Rule 406 was applied to permit the Government to prove a failure to file in 1976, 1977, and 1978); Wyatt v. State, 419 So.2d 277, 281 (Ala.Crim.App.1982) (recognizing, in dictum, the applicability of the habit exception in a criminal prosecution).

Rule 407. Subsequent remedial measures.

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. [Amended 8-15-2013, eff. 10-1-2013.]

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This rule, in its adoption of the historic “subsequent remedial measures doctrine,” calls for the general exclusion of evidence of remedial measures when it is offered to prove antecedent negligence or other culpable conduct. Based upon both a policy of encouraging safety measures and a consideration of irrelevancy, this general exclusionary rule is deeply rooted in the law of Alabama and the United States. See, e.g., Columbia & Puget Sound R.R. v. Hawthorne, 144 U.S. 202 (1892); Frierson v. Frazier, 142 Ala. 232, 37 So. 825 (1904); Hyde v. Wages, 454 So.2d 926 (Ala.1984); Banner Welders, Inc. v. Knighton, 425 So.2d 441 (Ala.1982). See also C. Gamble & G. Windle, Remedial Measures Doctrine in Alabama: From Exclusion to Admissibility and the Death of Policy, 37 Ala.L.Rev. 547 (1986); C. Gamble, McElroy’s Alabama Evidence § 189.02 (4th ed. 1991).

As under the reasoning at work in such principles as those incorporated into Ala.R.Evid. 404(b) (excluding evidence of prior criminal misconduct by an accused), Ala.R.Evid. 408 (excluding evidence of offers of compromise), and Ala.R.Evid. 411 (excluding evidence of liability insurance), evidence of subsequent remedial measures is excluded only when it is offered for the impermissible purpose of proving either negligence or other culpable conduct. A party may circumvent the general rule of exclusion by offering the evidence for some permissible purpose, such as impeachment or to prove ownership, control, or feasibility of precautionary measures, if the thing to be proved is controverted. As indicated by the phrase “such as,” these purposes stated are not a complete listing. Several of the purposes mentioned in this rule have been recognized under preexisting Alabama law. See Holland v. First Nat’l Bank of Brewton, 519 So.2d 460 (Ala.1987) (control); Alabama Power Co. v. Marine Builders, Inc., 475 So.2d 168 (Ala.1985) (feasibility); Stauffer Chem. Co. v. Buckalew, 456 So.2d 778 (Ala.1984) (impeachment). Additionally, preexisting Alabama evidence law has acknowledged permissible purposes that are not expressly mentioned in Rule 407. See, e.g., City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 529 (1944) (classic decision allowing evidence of remedial measures for the purpose of showing the condition of the place or object after an accident as a basis for inferring its condition at the time of the accident); Dixie Elec. Co. v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975) (admitting evidence of a post- accident safety measure as part of the res gestae).

Use of the word “controverted” is intended to continue the strong line of Alabama decisions precluding the use of a purpose, for admitting evidence of safety measures that otherwise would be excluded, when the asserted purpose does not relate to a genuine or material issue in the case. See, e.g., Standridge v. Alabama Power Co., 418 So.2d 84 (Ala.1982) (evidence of remedial measures, offered to prove control, excluded because control was not a disputed issue in the case; defendant admitted control but claimed it owed no duty to the plaintiff, even assuming control); Alabama Power Co. v. Marine Builders, Inc., 475 So.2d 168 (Ala.1985); Hyde v. Wages, 454 So.2d 926, 930 (Ala.1984) (evidence offered to prove ownership not admissible because there was no dispute over ownership or control); Leeth v. Roberts, 295 Ala. 27, 30, 322 So.2d 679, 681 (1975) (holding that the purpose of proving a condition at the time of an event can be relied upon only “when the existence of an object or condition at a given time is in issue or is the gravamen of the action or defense”). See also C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 105 (1988). Compare Anonymous v. State, 507 So.2d 972 (Ala.1987) (the purpose of proving intent, used as a basis for admitting evidence of an accused’s collateral criminal misconduct, is applicable only in cases requiring a specific criminal intent); Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983) (applying the present concept as a basis for excluding the accused’s collateral crimes when offered to prove intent; held that the “intent” purpose is not applicable when the prosecution’s evidence itself, if believed, would indicate that there is “no real and open issue” about the accused’s intent).

Nothing in Rule 407 is intended to preclude the court’s application of Rule 403 to subsequent remedial measures evidence. Factors of undue prejudice, confusion of issues, misleading the jury, and waste of time remain for consideration.

Rule 407 is identical to Fed.R.Evid. 407.

Advisory Committee’s Notes to Amendment to Rule 407 Effective October 1, 2013

Alabama’s Rule 407 has been amended in the same manner and for the same purposes that Federal Rule 407 was amended in 1997. The advisory committee’s notes accompanying the 1997 amendment of the federal rule summarize two changes made by the amendment as follows:

”The amendment to Rule 407 makes two changes in the rule. First, the words ’an injury or harm allegedly caused by’ were added to clarify that the rule applies only to changes made after the occurrence that produced the damages giving rise to the action. Evidence of measures taken by the defendant prior to the ’event’ causing ’injury or harm’ do not fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product. See Chase v. General Motors Corp., 856 F.2d 17, 21-22 (4th Cir. 1988).

”Second, Rule 407 has been amended to provide that evidence of subsequent remedial measures may not be used to prove ’a defect in a product or its design, or that a warning or instruction should have accompanied a product.’ This amendment adopts the view of a majority of the circuits that have interpreted Rule 407 to apply to products liability actions.”

In Alabama, these changes have application primarily in product-liability or Alabama Extended Manufacturer’s Liability Doctrine (AEMLD) cases. Both changes find support in Alabama caselaw. See, e.g., Phar-Mor, Inc. v. Goff, 594 So. 2d 1213, 1216 (Ala. 1992) (”The general rule excluding evidence of subsequent remedial measures is that ’evidence of repairs or alterations made, or precautions taken, by the defendant after the injury to the plaintiff in an accident [are] not admissible as tending to show the defendant’s antecedent negligence [or culpable conduct].’” (quoting C. Gamble, McElroy’s Alabama Evidence § 189.02(1) (4th ed. 1991))); Blythe v. Sears, Roebuck & Co., 586 So. 2d 861, 866 (Ala. 1991) (affirming trial court’s exclusion of subsequent-remedial-measures evidence in case brought under the AEMLD).

The Committee recognizes that the overwhelming body of federal caselaw holds that Federal Rule 407 does not require exclusion of evidence of (1) subsequent remedial measures made by nonparties or (2) subsequent remedial measures that were involuntarily undertaken or performed, and that such caselaw constitutes persuasive authority for the interpretation of Alabama’s Rule 407. See Ala. R. Evid. 102 (Advisory Committee’s Notes (”These rules have been modeled ... after the Federal Rules of Evidence .... Cases interpreting the federal rules ...are persuasive ... authority before the Alabama courts.”); Ex parte Lawrence, 776 So. 2d 50, 53 (Ala. 2000) (construing Rule 404(b)) (”The Advisory Committee Notes to the federal rules are persuasive authority in our interpretation of the Alabama rules.”); and Snyder v. State, 893 So. 2d 488, 540 (Ala. Crim. App. 2003) (construing Rule 609(b)) (”Because Alabama has had little opportunity to address this issue we have looked to the federal courts for guidance.”). However, the Committee has decided against incorporating language on these subjects into the text of Rule 407 primarily in order to maintain uniformity with the Federal Rule. For authority on the first point, see Millennium Partners, L.P. v. Colmar Storage, LLC, 494 F.3d 1293, 1302 (11th Cir. 2007) (”Rule 407 does not apply to a remedial measure that was taken without the voluntary participation of the defendant.”); 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 189.02(13) (6th ed. 2009) (”The Rule 407 exclusionary principle applies only to subsequent remedial measures taken by the party to the present litigation. ... Such third party remedial measures may be excluded but, rather than under Rule 407, such would be for lack of relevancy or because any relevancy is substantially outweighed by prejudice.” (footnotes omitted)). On the latter point, see Herndon v. Seven Bar Flying Service, Inc., 716 F.2d 1322, 1331 (10th Cir. 1983) (”Where a superior authority requires a tort feasor to make post-accident repairs, the policy of encouraging voluntary repairs which underlies Rule 407 has no force -- a tort feasor cannot be discouraged from voluntarily making repairs if he must make repairs in any case.” (emphasis omitted)).

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 408. Compromise and offers to compromise.

(a)   Prohibited Uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount or when offered to impeach through a prior inconsistent statement or contradiction:

(1)   furnishing or offering or promising to furnish—or accepting or offering or promising to accept—a valuable consideration in compromising or attempting to compromise the claim; and

(2)   conduct or statements made in compromise negotiations regarding the claim.

(b)   Permitted Uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by section (a). Examples of permissible purposes include proving a witness’s bias or prejudice, negating a contention of undue delay, and proving an effort to obstruct a criminal investigation or prosecution. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.

[Amended 8-15-2013, eff. 10-1-2013.]

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By excluding evidence of offers to compromise, this rule promotes the policy of encouraging parties to settle their disputes. The theory underlying this rule is similar to that underlying Rule 407 – evidence of offers to compromise is inadmissible only when it is offered for the expressly impermissible purposes of proving liability for, or invalidity of, the claim, or to prove its amount. This rule is adopted, without change, from the corresponding Federal Rule of Evidence. See Fed.R.Evid. 408. Such a general exclusionary rule, regarding offers of compromise, has long been recognized in Alabama. See, e.g., Glaze v. Glaze, 477 So.2d 435 (Ala.Civ.App.1985); Whitfield v. Birmingham Trust & Sav. Co., 244 Ala. 526, 14 So.2d 137 (1943). See also C. Gamble, McElroy’s Alabama Evidence § 188.01(1) (4th ed. 1991). Chief among the permissible purposes for which otherwise precluded compromise evidence would be admissible, is that of proving the bias or prejudice of a witness. See Plitt v. Griggs, 585 So.2d 1317 (Ala.1991); Louisville & Nashville R.R. v. Martin, 240 Ala. 124, 198 So. 141 (1940); C. Gamble, McElroy’s Alabama Evidence § 49.01(11) (4th ed. 1991).

The policy underlying this exclusionary rule is substantially similar to that underlying Ala.R.Civ.P. 68, which establishes a procedure whereby the defendant in civil litigation is authorized to make an offer of judgment in an effort to settle the dispute. Such an offer, if not accepted, is “deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs.”

In addition to evidence of compromise offers, Rule 408 excludes evidence of completed compromises. Ordinarily, of course, a completed compromise would be offered only in a situation where a party has made such an agreement with some third person. The exclusion of evidence of completed compromises is consistent with preexisting Alabama authority. See Chandler v. Owens, 235 Ala. 356, 179 So. 256 (1938); Cargall v. Riley, 209 Ala.183, 95 So. 821 (1923).

The breadth of exclusion under Rule 408 is extended beyond that existing at common law to now preclude, in addition to evidence of mere offers of compromise, evidence as to conduct occurring, or statements made, in compromise negotiations. Heretofore, for example, Alabama law has not expanded the exclusion to include admissions made in the course of compromise negotiations. Rather, it has applied the rule so as to exclude only the offer of compromise itself. Millsap v. Williamson, 294 Ala. 634, 320 So.2d 649 (1975); Baker v. Haynes, Henson & Co., 146 Ala. 520, 40 So. 968 (1906). But see Super Valu Stores, Inc. v. Peterson, 506 So.2d 317 (Ala.1987) (indicating that conversations and negotiations would be inadmissible).

The adoption of Rule 408 would appear to extinguish that preexisting line of authority in Alabama providing that offers to pay full compensation for an injury, as opposed to offers of a specified sum, are admissible. See Landham v. Lloyd, 223 Ala. 487, 136 So. 815 (1931); York v. Chandler, 40 Ala.App. 58, 109 So.2d 921, cert. denied, 268 Ala. 700, 109 So.2d 925 (1958).

Alabama has a clear and long line of decisions applying the principle that the jury may be made privy to the fact and the amount of a settlement between the plaintiff and a person who, as to the defendant, is alleged to be a joint tort-feasor. See, e.g., Hardman v. Freeman, 337 So.2d 325 (Ala.1976); Miller v. Dacovich, 355 So.2d 1109 (Ala.1978); Reynolds v. McEwen, 416 So.2d 702 (Ala.1982). See C. Gamble, McElroy’s Alabama Evidence § 188.06 (4th ed. 1991). See also, C. Gamble, Alabama Law of Damages § 10-4 (2d ed. 1988). The present rule is in no way intended to change this preexisting Alabama law under which the amount paid by a joint tort-feasor can be shown in mitigation of damages. See Vt.R.Evid. 408 advisory comments. While evidence of third-party settlements is within the general exclusion of Rule 408, it is not excluded when offered for the permissible purpose of proving the amount of damages the defendant must pay. C. Wright & A. Miller, Federal Practice and Procedure § 5314, at 282 (1980).

Alabama law of damages requires that a defendant assert the plaintiff’s pro tanto settlement with a joint tortfeasor before being allowed to set off the amount of such a settlement against the amount of the judgment secured by the plaintiff. Under Alabama authority predating the adoption of these Alabama Rules of Evidence, this damages rule dictates that evidence of such a pro tanto settlement by the plaintiff with the joint tortfeasor be admitted when offered by the defendant. Rule 408 has no impact upon this line of authority. See Miller v. Dacovich, 355 So.2d 1109 (Ala.1978); Hardman v. Freeman, 337 So.2d 325 (Ala.1976).

Nothing in Rule 408 is intended to protect otherwise discoverable evidence simply because a party has offered such evidence during compromise negotiations. Stated differently, a party is not allowed to use Rule 408 as a shield against otherwise proper pretrial discovery.

Rule 408 is in no way intended to impede the preexisting broad interpretation that Alabama courts have applied to the rule excluding evidence of compromise negotiations. In particular, evidence of a party’s offer to settle will continue to be inadmissible when offered in that party’s own behalf as going to show the validity and strength of the offeror’s own case and the corresponding invalidity of the offeree’s case. See, e.g., Kelly v. Brooks, 25 Ala. 523 (1854) (excluding evidence of plaintiff’s own offer to submit dispute to a panel); Glaze v. Glaze, 477 So.2d 435 (Ala.Civ.App.1985) (excluding evidence of defendant’s self-serving offer of settlement). Overall, the advisory committee expects that the Supreme Court of Alabama will continue its generous protection, as privileged and inadmissible, of negotiations looking to compromise of controversies. See Super Valu Stores, Inc. v. Peterson, 506 So.2d 317 (Ala.1987). This in no way detracts from the concept, otherwise embodied in Rule 408, that offers of compromise may be admissible for purposes not precluded in the rule. This “other purpose” doctrine, however, should be applied by the courts in a way that does not defeat the underlying policy of the rule. See J. Weinstein & M. Berger, 2 Weinstein’s Evidence ¶ 408[04], at 408-31 (1992).

Advisory Committee’s Notes to Amendment to Rule 408 Effective October 1, 2013

Rule 408 of the Alabama Rules of Evidence was identical to Federal Rule 408 until the federal rule was amended in 2006. Rule 408, Ala. R. Evid., has been amended to incorporate some of, but not all, the changes made to the federal rule.

First, the text of Rule 408 has been edited and rearranged in the same fashion as the federal rule. These changes were made in an effort to make the rule easier to read and understand and are not substantive.

Second, two of three changes made to Federal Rule 408 are adopted. Like Federal Rule 408, the amendment provides that compromise evidence ”is not admissible on behalf of any party.” Thus, Rule 408 clearly provides that compromise evidence is excluded even when a party seeks to admit its own settlement offer or statements made in settlement negotiations. This language is added to keep Alabama’s rule consistent with the federal rule, but it is not intended to effect any change in existing Alabama law. See, e.g., Northwestern Mut. Life Ins. Co. v. Sheridan, 630 So. 2d 384, 389 (Ala. 1993) (party could not admit portions of a letter it had sent to opposing party that constituted an offer of compromise); Glaze v. Glaze, 477 So. 2d 435, 436 (Ala. Civ. App. 1985) (excluding evidence of defendant’s self-serving offer of settlement); and Kelly v. Brooks, 25 Ala. 523 (1854) (excluding evidence of plaintiff’s own offer to submit dispute to a panel). In addition, if this language were omitted from Ala. R. Evid. 408, it might lead to unintended confusion as to whether the omission meant that a change in Alabama law was intended.

The amendment also incorporates language from the federal rule prohibiting the use of negotiation conduct or statements when offered ”to impeach through a prior inconsistent statement or contradiction.” Although impeachment by prior inconsistent statement or contradiction could technically be considered an “other purpose” for using compromise evidence, it is believed that allowing such broad impeachment would, in effect, swallow the rule and discourage parties from engaging in frank and open discussions.

This amendment does not incorporate all the changes made to Federal Rule 408. Two differences should be noted. First, Federal Rule 408 allows the admission of evidence of settlement conduct or statements in a criminal case in one situation -- where ”the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative or enforcement authority.” Fed. R. Evid. 408(a)(2). This criminal-case exception for the use of evidence of settlement conduct or statements is rejected. Historically, the exclusionary rule embodied in Alabama’s Rule 408 has been applied to exclude compromise evidence in criminal cases. See Hodges v. State, 570 So. 2d 1252, 1258 (Ala. Crim. App. 1989) (trial court properly excluded testimony regarding attempt by theft victim to work out repayment with accused); Strickland v. State, 40 Ala. App. 413, 416, 115 So. 2d 273, 276 (1959) (”Evidence of civil settlements adduced by the State is not admissible over objection in criminal trials); and 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 188.04(1) (6th ed. 2009) (”Such settlement negotiations have been excluded whether offered for or against the accused.”). Alabama caselaw has not recognized a criminal-case exception for settlement conduct or statements made in civil cases brought by government agencies, and it is felt that recognizing such an exception is unwarranted because it would discourage settlement discussions in such cases.

A second change made to Federal Rule 408 is rejected. The 2006 amendment to Federal Rule 408 deleted, as superfluous, the following sentence: ”This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.” This sentence has been retained in Alabama’s Rule 408 as a precaution against frivolous argument.

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 409. Payment of medical and similar expenses.

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

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This rule is identical to Rule 409, Federal Rules of Evidence. Like the federal rule, it excludes evidence that one has paid, or has offered to pay, medical or similar expenses, when that evidence is offered to prove liability. The rule is stated in W.R. Habeeb, Annotation, Admissibility of Evidence to Show Payment, or Offer or Promise of Payment, of Medical, Hospital, and Similar Expenses of an Injured Party by the Opposing Party, 20 A.L.R.2d, 291, 293 (1951):

“[G]enerally evidence of payment, or offer or promise of payment, of medical, hospital, or similar expenses of an injured party by the opposing party, is not admissible, the reason often given being that such payment or offer is usually made from humane impulses and not from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person.”

The twin considerations of relevancy and public policy underlie this rule just as they do Ala.R.Evid. 407 (dealing with subsequent remedial measures) and Ala.R.Evid. 408 (dealing with offers of compromise). This rule of exclusion is consistent with preexisting Alabama law. See Burress v. Dupree, 287 Ala. 524, 253 So.2d 31 (1971); C. Gamble, McElroy’s Alabama Evidence § 188.05 (4th ed. 1991); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 4-9 (1987).

As is often the case with general exclusionary principles in the law of evidence, Rule 409 excludes this evidence only when it is offered for the impermissible purpose of proving liability. It will allow the admission of this same evidence when it is offered for some other material purpose in the litigation.

The exclusion provided under this rule is not as broad as the exclusion provided for offers of compromise under Ala.R.Evid. 408. The exclusion of Rule 409 does not extend to evidence of any conduct or statements other than those constituting the “furnishing or offering or promising to pay medical, hospital, or similar expenses.”

Rule 410. Inadmissibility of pleas, plea discussions, and related statements.

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1)   a plea of guilty which was later withdrawn;

(2)   a plea of nolo contendere in a federal court or criminal proceeding in another state;

(3)   any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4)   any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness to be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel, or (iii) in any subsequent proceeding wherein voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers are offered as prior inconsistent statements.

Advisory Committee’s Notes

Evidence that a person has offered to compromise a criminal prosecution, especially evidence that the person entered a guilty plea that was later withdrawn, historically has been excluded when offered against the defendant. This general exclusion has been recognized by the highest courts in both the federal and Alabama systems. See, e.g., Kercheval v. United States, 274 U.S. 220 (1972); Sanders v. State, 148 Ala. 603, 41 So. 466 (1906). See also Lankford v. State, 396 So.2d 1099 (Ala.Crim.App.1981); C. Gamble, McElroy’s Alabama Evidence § 188.04 (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 4-10 (1990). This exclusion, based largely upon a policy of encouraging the communication necessary for settlement, is adopted and expanded by Rule 410, which is almost identical to Fed.R.Evid. 410, upon which it is based.

The breadth of the exclusion regarding evidence of an offer to compromise a criminal prosecution is here expanded to include, in addition to evidence of the plea itself, any statement made in the course of plea discussions with an attorney for the prosecuting authority. Compare Ala.R.Crim.P. 14.3(d) (excluding evidence of “the plea discussion”). The “any statement” language reverses preexisting Alabama case law under which an express admission, made in the course of the defendant’s efforts to effectuate a compromise, would be admissible. See Harrison v. State, 235 Ala. 1, 178 So. 458 (1937), cert. denied, 235 Ala. 292, 178 So. 460 (1938). Rule 410 does not exclude voluntary admissions made to a law enforcement official or other person without the authority to enter a plea bargain. See E. Cleary, McCormick on Evidence § 159 (3d ed. 1984) (discussing the policies underlying the reception of admissions made by the defendant to law enforcement officers in the hope of obtaining leniency).

While Alabama does not recognize a plea of nolo contendere, Rule 410 excludes evidence of such pleas entered in federal courts or in the courts of other states. Such nolo contendere pleas are to be treated the same, under the rule, as withdrawn guilty pleas.

Any statement made during proceedings regarding guilty pleas or nolo contendere pleas, conducted in a federal court under Rule 11 of the Federal Rules of Criminal Procedure or during proceedings conducted in a state court under a comparable procedure, is likewise excluded.

Rule 410 does not address the question whether a witness may be impeached by the witness’s prior conviction on a plea of nolo contendere. This issue is left to be resolved under Rule 609. Such impeachment would not be precluded by Rule 410 so long as the conviction meets the requirements otherwise applied under Rule 609.

The Rule 410 exclusion of evidence regarding a plea or a plea bargain statement applies in both civil and criminal proceedings where the evidence is offered against the defendant. The phrase “against the defendant who made the plea or was a participant in the plea discussions” makes it clear, however, that such evidence could be used, in an appropriate case, to impeach. See United States v. Mathis, 550 F.2d 180 (4th Cir.1976), cert. denied, 429 U.S. 1107 (1977); Giglio v. United States, 405 U.S. 150 (1972) (recognizing that such a right may rise to a constitutional level).

Alabama, by adopting Rule 410, follows the lead of those seven states that have provided for the use of withdrawn guilty pleas, nolo contendere pleas, and plea bargaining statements when offered to impeach the defendant by evidence of a prior inconsistent statement. The only nonplea statements usable for such impeachment are those that were voluntary, reliable, and made in court on the record. Compare Alaska R.Evid. 410; Colo.R.Evid. 410; Fla.R.Evid. 410; Idaho R.Evid. 410; Mont.R.Evid. 410; Neb.R.Evid. 410; N.D.R.Evid. 410.

Rule 411. Liability insurance.

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

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Rule 411, providing a general exclusion of evidence of liability insurance coverage when offered to prove that the insured acted negligently or otherwise wrongfully, is adopted from Rule 411, Fed.R.Evid., without change. It is consistent with preexisting Alabama law. See Cook v. Anderson, 512 So.2d 1310 (Ala.1987); Williamson v. Raymond, 495 So.2d 609 (Ala.1986). In addition to generally excluding evidence of liability insurance coverage, Rule 411 also excludes evidence of noncoverage. See E. Cleary, McCormick on Evidence § 201 (3d ed. 1984); Stephenson v. Steinhauer, 188 F.2d 432, 438 (8th Cir. 1951).

Like other limited-purpose exclusionary rules, this rule applies only when the evidence of liability insurance is offered to prove negligence or other wrongful conduct of the subject person. This rule does not exclude evidence of liability coverage whenever the moving party is offering the evidence for some material purpose in the case other than to prove negligence or other wrongful conduct. Thorne v. Parrish, 265 Ala.193, 90 So.2d 781 (1956). See also C. Gamble, McElroy’s Alabama Evidence § 189.04(1) (4th ed. 1991). As the language “such as” indicates, the list of permissible purposes for which evidence of insurance may be admitted, is merely illustrative. Those purposes specifically mentioned are to prove agency, to prove ownership, to prove control, and to prove bias or prejudice of a witness. If a bailor denies ownership of an instrumentality used by a negligent bailee, for example, the bailor’s purchase of liability insurance coverage relating to the instrumentality may be admitted to prove the bailor’s ownership. Pinckard v. Dunnavant, 281 Ala. 533, 206 So.2d 340 (1968); Mobile Pure Milk Co. v. Coleman, 26 Ala.App. 402, 161 So. 826, cert. denied, 230 Ala. 432, 161 So. 829 (1935). In further illustration, nothing in this general exclusionary rule precludes one from impeaching an opponent’s witness on cross- examination by exploring the possible bias shown by that witness’s interest in, or employment by, the opponent’s insurance carrier. Calloway v. Lemley, 382 So.2d 540 (Ala.1980); Pittman v. Calhoun, 231 Ala. 460, 165 So. 391 (1935). But see Otwell v. Bryant, 497 So.2d 111 (Ala.1986) (holding that evidence showing bias may be so slight as to be excluded because of prejudice).

This rule is not intended to disturb that line of cases permitting the trier of fact to be privy to the fact of insurance coverage when that fact is inseparably connected to other evidence that is admissible. See Crump v. Geer Bros., 336 So.2d 1091 (Ala.1976).

Neither is Rule 411 intended to change Alabama’s preexisting law regarding the questions that may be asked of prospective jurors on voir dire examination. See Cooper v. Bishop Freeman Co., 495 So.2d 559 (Ala.1986), overruled by Burlington N. R.R. v. Whitt, 575 So.2d 1011 (Ala.1990), cert. denied, 499 U.S. 948 (1991).

Rule 412. Admissibility of evidence relating to complaining witness in prosecution for criminal sexual conduct.

(a)   Evidence Generally Inadmissible. The following evidence is not admissible in any prosecution for criminal sexual conduct except as provided in sections (b) and (c):

(1)   evidence offered to prove that any complaining witness engaged in other sexual behavior.

(2)   evidence offered to prove any complaining witness’s sexual predisposition.

(b)   Exceptions. The following evidence is admissible, if otherwise admissible under these rules:

(1)   evidence of specific instances of sexual behavior by the complaining witness offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(2)   evidence of specific instances of sexual behavior by the complaining witness with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(3)   evidence the exclusion of which would violate the constitutional rights of the defendant.

(c)   Procedure to Determine Admissibility.

(1)   MOTION. If a party intends to offer evidence under Rule 412(b), the party must:

(A)   file a motion that specifically describes the evidence and states the purpose for which it is to be offered;

(B)   do so a reasonable time before trial unless the court, for good cause, sets a different time; and

(C)   serve the motion on all parties.

(2)   NOTICE. Regardless of who brings the motion, the prosecution shall notify the complaining witness, or, when appropriate, the complaining witness’s guardian or representative, of the motion.

(3)   HEARING. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the parties a right to attend and be heard. If at the conclusion of the hearing the court finds that any of the evidence introduced at the hearing is admissible under section (b) of this rule, the court shall by order state what evidence may be introduced and in what manner the evidence may be introduced. All in camera proceedings shall be included in their entirety in the transcript and record of the trial and case;

(4)   The party may then introduce evidence pursuant to the order of the court.

(d)   Definitions. As used in this rule, unless the context clearly indicates otherwise, the following words and phrases shall have the following respective meanings:

(1)   COMPLAINING WITNESS. Any person alleged to be the victim of the crime charged, the prosecution of which is subject to the provisions of this rule.

(2)   CRIMINAL SEXUAL CONDUCT.

Sexual activity, including, but not limited to, rape; sodomy; sexual misconduct; sexual abuse; and assault with intent to commit, attempt to commit, solicitation to commit, or conspiracy to commit criminal sexual conduct.

[Amended 8-15-2013, eff 10-1-2013.]

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Of those states that have adopted rules of evidence, only Mississippi has adopted verbatim Federal Rule of Evidence 412. Each of the others has either drafted its own corresponding rule or simply adopted a preexisting “rape shield” statute as its Rule 412. See G. Joseph & S. Saltzburg, Evidence in America § 22.2 (1987). The drafters of Ala.R.Evid. 412 have chosen the latter course. Alabama’s preexisting statute, applied in prosecutions for those crimes named in section (b), and providing for the general exclusion of evidence regarding the past sexual behavior of a victim of criminal sexual conduct, has been rewritten, with slight modifications, as Rule 412. Compare Ala. Code 1975, § 12-21-203 (superseded by this rule). This rule varies from the preexisting statute primarily in two regards. First, Rule 412(a)(3) expands the definition of “evidence relating to past sexual behavior” to include opinion evidence regarding the victim’s character. This change makes Rule 412 consistent with Rule 405(a), which provides that opinion may be offered as an alternative to reputation when proving character. The second change made in converting the preexisting statute into a rule is to add language in Rule 412(d)(1) providing that the defense, in notifying the court that it intends to introduce evidence of past sexual behavior that directly involved the accused, may give the court the required notice at any time before the defense seeks to introduce it.

Rule 412 is intended to effect no change in that line of well developed judicial authority interpreting Alabama’s preexisting “rape shield” statute. It continues the general exclusion of all evidence concerning the victim’s past sexual behavior. Such evidence, in whatever form, will become admissible only if the court determines that it relates to behavior that directly involved the participation of the accused. See McGilberry v. State, 516 So.2d 907 (Ala.Crim.App.1987); Smelcher v. State, 520 So.2d 229 (Ala.Crim.App.1987); Jackson v. State, 375 So.2d 1271 (Ala.Crim.App.), cert. denied, 375 So.2d 1274 (Ala.1979) (holding that the prosecutrix could not be cross-examined as to whether she was taking birth control pills at the time of the assault). See also C. Gamble, McElroy’s Alabama Evidence § 32.01 (4th ed. 1991) (sexual behavior of the victim).

While the term “in camera” is taken directly from Alabama’s rape shield statute, and therefore is not specifically defined in Rule 412, the committee assumes the term will carry its common law meaning, and the committee intends that the trial judge will have the discretion to decide the method by which the defendant’s offer of evidence is made. See Rule 412(d)(1).

Advisory Committee’s Notes to Amendment to Rule 412 Effective October 1, 2013

Sections (a) and (b) of amended Rule 412 are taken directly from sections (a) and (b) of Federal Rule of Evidence 412 -- omitting only language that references the application of the federal rule to civil cases. Unlike its federal counterpart, Alabama’s Rule 412 applies only in criminal prosecutions for crimes involving “sexual conduct,” and it affords protection to only the “complaining witness.” Accordingly, some changes in wording were required to recognize the more limited scope of the Alabama rule. For example, in Alabama’s Rule 412 the phrase “complaining witness” has been substituted for the phrase “alleged victim” in the federal rule, and the phrase “prosecution for criminal sexual conduct” has been substituted for the phrase “civil or criminal proceeding involving alleged sexual misconduct.”

Section (a). Evidence Generally Inadmissible. As amended, Rule 412(a) bars evidence offered to prove the complaining witness engaged in “other sexual behavior” or to prove the complaining witness’s “sexual predisposition.” These terms are taken verbatim from Federal Rule 412(a)(1) and (2) and include evidence the former Alabama rule defined as ”Evidence Relating to Past Sexual Behavior.” See 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 32.01 (6th ed. 2009) (Rule 412 prohibits evidence of ”sexual acts, marital history, mode of dress, general reputation for a pertinent trait, and opinion of the victim’s character for a pertinent trait.”). Like the former rule, amended Rule 412 continues the general exclusion of all such evidence, in whatever form, unless the requirements for a section (b) exception are satisfied. This amendment is not intended to effect a change in the well-developed line of judicial authority admitting evidence that a victim made prior false allegations of sexual misconduct. See Ex parte Loyd, 580 So. 2d 1374, 1375 (Ala. 1991) (evidence that complaining witness made prior false allegations of sexual misconduct, or threatened to make such allegations, falls outside scope of Alabama’s rape-shield statute).

Under the amended rule, “other sexual behavior” connotes all activities that involve actual physical conduct, i.e., sexual intercourse or sexual contact, or that imply sexual intercourse or sexual contact. See, e.g., Jackson v. State, 375 So. 2d 1271, 1273 (Ala. Crim. App. 1979) (evidence that complaining witness was taking birth-control pills at the time of the alleged assault inadmissible); United States v. Galloway, 937 F.2d 542 (10th Cir. 1991) (evidence of use of contraceptives inadmissible because such use implies sexual activity); United States v. One Feather, 702 F.2d 736 (8th Cir. 1983) (evidence of birth of an illegitimate child inadmissible); and State v. Carmichael, 240 Kan. 149, 156-57, 727 P.2d 918, 925 (1986) (evidence of venereal disease inadmissible). In addition, the word “behavior” should be construed to include activities of the mind, such as fantasies or dreams. See 23 C. Wright & K. Graham, Jr., Federal Practice and Procedure § 5384 at p. 548 (1980) (”While there may be some doubt under statutes that require ’conduct,’ it would seem that the language of Rule 412 is broad enough to encompass the behavior of the mind.“). The word ”other” is used to suggest flexibility in admitting evidence “intrinsic” to the alleged criminal sexual misconduct.

Amended Rule 412 also excludes evidence relating to a complaining witness that is offered to prove a “sexual predisposition.” This is designed to exclude evidence that does not directly refer to sexual activities or thoughts but that the proponent believes may have a sexual connotation for the fact-finder. For example, evidence relating to the complaining witness’s mode of dress, speech, or lifestyle will not be admissible unless constitutionally required pursuant to subsection (b)(3). The exclusion of evidence of sexual predisposition is not new to Alabama. Compare Ala. Code 1975, § 12-21-203(a)(3) (superseded by the adoption of Rule 412) (excluding evidence of marital history and mode of dress). See McGilberry v. State, 516 So. 2d 907, 913 (Ala. Crim. App. 1987) (affirming trial court’s exclusion of evidence concerning victim’s “interest in and propensity for seeking affection from older men” under Alabama’s statutory rape- shield law).

Section (b). Exceptions. Section (b) sets forth three exceptions to the general rule of exclusion. These exceptions are identical to the three exceptions found in subsections (A), (B), and (C) of Federal Rule 412(b)(1). Evidence may be admitted pursuant to one of the three exceptions provided the evidence also satisfies other requirements for admissibility specified in the Alabama Rules of Evidence, including Rule 403. It should be noted that the exceptions contained in subsections (b)(1) and (b)(2) require proof relating to specific instances of sexual behavior. This requirement is in recognition of the limited probative value and dubious reliability of evidence of the complaining witness’s reputation or of evidence in the form of an opinion.

Under subsection (b)(1), evidence of specific instances of the complaining witness’s sexual behavior with persons other than the accused may be admissible if it is offered to prove that another person was the source of semen, injury, or other physical evidence. When the prosecution has directly or indirectly asserted that the physical evidence originated with the accused, the defendant must be afforded an opportunity to prove that another person was responsible. This exception is a codification of the so-called “Scottsboro exception” and the Alabama Supreme Court’s decision in Ex parte Dennis, 730 So. 2d 138, 142 (Ala. 1999) (”[T]he ’Scottsboro exception’ is not only wise, but is constitutionally required in some cases in which the prosecution offers evidence to show that a physical injury or condition of the victim indicates that the defendant committed the offense of rape.”).

Under the exception in subsection (b)(2), evidence of specific instances of sexual behavior involving the complaining witness and the accused is admissible if offered by the accused to prove consent or if offered by the prosecution. Admissible pursuant to this exception might be evidence of prior instances of sexual activities between the alleged victim and the accused, as well as statements in which the alleged victim expressed an intent to engage in sexual intercourse with the accused or voiced sexual fantasies involving the accused. When such evidence is offered by the accused, this exception is consistent with the sole exception contained in the former rule and the Alabama statute the former rule superseded. See Ala. Code 1975, § 12-21-203 (superseded by the adoption of Rule 412). However, subsection (b)(2) also incorporates language from the federal rule, which provides that such evidence may also be offered “by the prosecution.” For example, in a prosecution for child sexual abuse, evidence of uncharged sexual activity between the accused and the complaining witness offered by the prosecution may be admissible pursuant to Rule 404(b) to show a pattern of behavior. If the prosecution seeks to offer evidence under this exception, it must comply with all procedural requirements set forth in section (c). Evidence relating to the complaining witness’s alleged sexual predisposition is not admissible pursuant to this exception.

The third exception, set out in subsection (b)(3), recognizes that evidence of a complaining witness’s other sexual activity or sexual predisposition may not be excluded when such exclusion would be in violation of the accused’s constitutional rights. See Ex parte Dennis, 730 So. 2d 138, 141 (Ala. 1999) (”[W]hen Rule 412 is applied to preclude the admission of particular exculpatory evidence, the constitutionality of its application is to be determined on a case-by-case basis.”); 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 32.01 (6th ed. 2009) (”Nothing ... prevents the courts from concluding that the apparent absolutism of the rape shield principle gives way to constitutionally mandated rights.”). The United States Supreme Court has recognized that in various circumstances a defendant may have a right to introduce evidence otherwise precluded by a rule of evidence under the Confrontation Clause. See, e.g., Olden v. Kentucky, 487 U.S. 227 (1988) (defendant in rape cases had right to inquire into alleged victim’s cohabitation with another man to show bias). Cf. Ex parte D.H.L., 806 So. 2d 1190, 1193-94 (Ala. 2001) (prosecution may open the door to otherwise inadmissible evidence of the complaining witness’s sexual activity with others to rebut and impeach testimony to the contrary). Arguably, it is not necessary to include such an exception because Rule 412 is of course subordinate to the Constitution.

Section (c). Procedure to Determine Admissibility. Section (c) sets forth the procedures that must be followed in determining whether evidence may be introduced pursuant to one of the section (b) exceptions. Although the procedures track those contained in the former Alabama rule, some differences should be noted.

First, subsection (c)(1)(A) requires that a motion be filed that ”specifically describes the evidence and states the purpose for which it is to be offered.” This language is more specific than subsection (d)(1) of the former rule, which stated only that the ”defense shall notify the court of [its] intent” to introduce evidence under rule.

Second, unlike subsection (d)(1) of the former Alabama rule, which stated that the court could be notified “[a]t any time before the defense shall seek to introduce evidence,” subsection (c)(1)(B) requires the motion to be filed “a reasonable time before trial” but permits the motion to be filed later upon a showing of “good cause.” The requirement that the motion be filed pretrial is intended to provide for a more orderly review of the issues presented. Nonetheless, the rule also recognizes that in some instances circumstances justifying an application to introduce evidence otherwise barred by Rule 412 will not become apparent until trial.

Third, subsection (c)(1)(D) requires the prosecution to notify the complaining witness that a motion to present evidence pursuant to the rule has been filed. This requirement is new to Alabama law. Although, in a technical sense, the complaining witness would not be considered a party to criminal proceedings, providing such notice represents sound policy in light of the purposes underlying Rule 412. It should be noted that the amended rule, unlike its federal counterpart, requires the prosecution — not the defense — to provide notice that a motion has been filed. Cf. Fed. R. Evid. 412(c)(1)(B) (providing that the party filing the motion and intending to offer evidence under a Rule 412 exception must notify the alleged victim).

Finally, subsection (c)(2) does not change the requirement in the former rule that the court conduct an in camera hearing on the motion. This requirement is intended to ensure that the privacy of the complaining witness is preserved. It should be noted that the amended rule does not provide that the complaining witness has a right to attend and be heard at the in camera admissibility hearing. Cf. Fed. R. Evid. 412(c)(2) (affording “victim and parties” a right to attend and be heard).

Section (d). Definitions. The definition for “complaining witness” in subsection (d)(1) is unchanged from the definition in the former rule. The definition for “criminal sexual conduct” in subsection (d)(2) is lengthier than the definition provided in the former rule; however, there is no difference in substance. The definition for “criminal sexual conduct” in subsection (d)(2) simply updates and combines language set out in two different subsections of the former rule. The definition for “evidence relating to past sexual behavior” found in the former rule has been deleted as unnecessary because conduct associated with the phrase “past sexual behavior” is included within the terms “other sexual behavior” and “sexual predisposition” set out in subsections (a)(1) and (a)(2) of the amended rule.

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 501. Privileges recognized only as provided.

Except as otherwise provided by constitution or statute or by these or other rules promulgated by the Supreme Court of Alabama, no person has a privilege to:

(1)   refuse to be a witness;

(2)   refuse to disclose any matter;

(3)   refuse to produce any object or writing; or

(4)   prevent another from being a witness or disclosing any matter or producing any object or writing.

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This introductory rule, serving as a preface to the evidentiary privileges, embraces the historic common law principle that no privilege exists where none has been granted. A party to a civil action, for example, generally has no privilege not to be a witness. Ala. Code 1975, § 12-21-163. See In re Sullivan, 283 Ala. 514, 219 So.2d 346, cert. denied, Sullivan v. Board of Comm’rs, 396 U.S. 826 (1969). Additionally, a civil litigant has no general privilege to refuse to produce an object or a writing. Rarden v. Cunningham, 136 Ala. 263, 34 So. 26 (1903). Similarly, a witness has no common law privilege generally not to exhibit his or her body. King v. State, 100 Ala. 85, 14 So. 878 (1894); C. Gamble, McElroy’s Alabama Evidence § 361.05 (4th ed. 1991). Generally, a witness has no privilege to refuse to answer a question on the ground that the answer would tend to be humiliating or degrading. Ex parte Boscowitz, 84 Ala. 462, 4 So. 279 (1888). One likewise, at least as a beginning principle, has no privilege to require that a communication not be disclosed merely because it was made or received in confidence. Phillips v. Alabama Dep’t of Pensions & Sec., 394 So.2d 51 (Ala.Civ.App.1981). See C. Gamble, McElroy’s Alabama Evidence § 386.01 (4th ed. 1991).

Despite this beginning no-privilege premise, the law grants privileges. Witnesses, for example, have a constitutional privilege against self-incrimination. International Bhd. of Teamsters v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971) (privilege of witnesses in civil actions). See C. Gamble, McElroy’s Alabama Evidence § 373.01 (4th ed. 1991). An accused has a constitutional and statutory privilege not to be compelled to give incriminating evidence. U.S. Const. Amend. V; Ala. Const. Art. I, § 6 (1901); Ala. Code 1975, § 12-21-220. Additionally, privileges are provided in the rules following Rule 501 and in other rules promulgated by the Supreme Court of Alabama.

A prime example of a privilege existing outside these Alabama Rules of Evidence is the “work product” privilege found in Ala.R.Civ.P. 26(b)(3). See Hickman v. Taylor, 329 U.S. 495 (1947); C. Gamble, McElroy’s Alabama Evidence § 290.02(15) (4th ed. 1977). A number of statutory privileges will continue to exist outside these Rules of Evidence. See, e.g., Ala. Code 1975, §§ 32-7-12 (motor vehicle accident reports), 34-24-59(c) (hospital disciplinary action reports). See generally J. Colquitt, Alabama Law of Evidence § 5.1 (1990).

Rule 502. Attorney-client privilege.

(a)   Definitions. As used in this rule:

(1)   “Client” is a person, public officer, or corporation, association, or other organization or entity, either public or private, that is rendered professional legal services by an attorney, or that consults an attorney with a view to obtaining professional legal services from the attorney.

(2)   “Representative of the client” is: (i) a person having authority to obtain professional legal services or to act on legal advice rendered on behalf of the client or (ii) any other person who, for the purpose of effecting legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.

(3)   “Attorney” is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.

(4)   “Representative of the attorney” is a person employed by the attorney to assist the attorney in rendering professional legal services.

(5)   A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those to whom disclosure is reasonably necessary for the transmission of the communication.

(b)   General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client, (1) between the client or a representative of the client and the client’s attorney or a representative of the attorney, or (2) between the attorney and a representative of the attorney, (3) by the client or a representative of the client or the client’s attorney or a representative of the attorney to an attorney or a representative of an attorney representing another party concerning a matter of common interest, (4) between representatives of the client and between the client and a representative of the client resulting from the specific request of, or at the express direction of, an attorney, or (5) among attorneys and their representatives representing the same client.

(c)   Who may claim the privilege. The privilege may be claimed by the client, the client’s guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the attorney, or the attorney’s representative, at the time of the communication may claim the privilege, but only on behalf of the client. The attorney’s or the representative’s authority to do so is presumed in the absence of evidence to the contrary.

(d)   Exceptions. There is no privilege under this rule:

(1)   FURTHERANCE OF CRIME OR FRAUD. If the services of the attorney were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;

(2)   CLAIMANTS THROUGH THE SAME DECEASED CLIENT. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction;

(3)   BREACH OF DUTY BY AN ATTORNEY OR CLIENT. As to a communication relevant to an issue of breach of duty by an attorney to the client or by a client to the client’s attorney;

(4)   DOCUMENT ATTESTED BY AN ATTORNEY. As to a communication relevant to an issue concerning the intention or competence of a client executing an attested document to which the attorney is an attesting witness, or concerning the execution or attestation of such a document;

(5)   JOINT CLIENTS. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to an attorney retained or consulted in common, when offered in an action between or among any of the clients.

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Alabama’s preexisting attorney-client privilege is a creature of the common law. See Ex parte Enzor, 270 Ala. 254, 117 So.2d 361 (1960). That common law privilege, however, has been embodied in a statute. Ala. Code 1975, § 12-21-161. See C. Gamble, McElroy’s Alabama Evidence § 388.02 (4th ed. 1991). Except as otherwise may be specifically indicated, Rule 502 is intended to embody the same privilege as set out in this former case law and statutory law. This rule, consequently, supersedes the preexisting statute. While generally carrying forward the former Alabama law concerning the attorney-client privilege, the language of Rule 502 is based largely upon the corresponding principle as expressed under the Uniform Rules of Evidence. See Unif.R.Evid. 502.

Rule 502 is not intended to describe or in any way limit the attorney work-product doctrine. See Ala.R.Civ.P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495 (1947); Ex parte May, 393 So.2d 1006 (Ala.1981).

Subsection (a)(1). Definition of “client.” This subsection defines “client” to include those nonindividual entities that communicate with an attorney in the course of securing, or while seeking, legal services. The term includes, among others, corporations, governmental bodies, and nonincorporated associations and organizations. While antecedent Alabama law has not extended the client status to all these entities, including them is within the spirit of those cases in which the issue has been considered. Historic Alabama law, for example, has recognized that a corporation may be a client. Ex parte Great Am. Surplus Lines Ins. Co., 540 So.2d 1357 (Ala.1989); Jay v. Sears, Roebuck & Co., 340 So.2d 456 (Ala. Civ. App. 1976); Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), cert. denied, 401 U.S. 974 (1971). The term “legal services” is to be defined broadly to include, among other things, the providing of mere legal advice.

As under prior Alabama law, the privilege provided by Rule 502 is available to one who consults an attorney for the purpose of retaining the attorney. It is available even if the attorney is never actually employed. Rule 502, like former Alabama law, requires, in a case in which the attorney is not employed, that the communication be made “with a view to” employing the attorney. See State v. Tally, 102 Ala. 25, 15 So. 722 (1894); C. Gamble, McElroy’s Alabama Evidence § 390.03 (4th ed. 1991). The preexisting statute expresses the same requirement – that the communications be given by reason of “anticipated employment as attorney.” Ala. Code 1975, § 12-21-161.

The employment of the attorney does not have to relate to litigation. To give rise to the privilege, however, the client must be consulting an attorney who is acting in the capacity of providing legal advice and counsel. Seeking an attorney’s advice as to purely business or personal matters does not activate the privilege. See, e.g., State v. Marshall, 8 Ala. 240 (1845); Modern Woodmen of Am. v. Watkins, 132 F.2d 352 (5th Cir. 1942). See also C. Gamble, McElroy’s Alabama Evidence § 389.01 (4th ed. 1991).

Subsection (a)(2). Definition of “representative of the client.” Alabama has long recognized a principle, carried forward in Rule 502, that the attorney-client privilege applies to communications made by the client’s servant or agent to the attorney. Vacalis v. State, 204 Ala. 345, 86 So. 92 (1920). See C. Gamble, McElroy’s Alabama Evidence § 393.03 (4th ed. 1991). The privilege also applies to vicarious communications made in behalf of a corporate client. Jay v. Sears, Roebuck & Co., 340 So.2d 456 (Ala. Civ. App. 1976). While Alabama has had few appellate cases dealing with corporations claiming the privilege, Rule 502 was drafted in light of significant federal case law in this area. Historically, the federal position was that the privilege applied only to corporate employees who possessed authority to obtain professional legal services or to act on advice given by the attorney. This so-called “control group test” was rejected in Upjohn Co. v. United States, 449 U.S. 383 (1981). Rule 502 follows this decision in expanding the scope of the corporate attorney-client privilege beyond those employees within the control group, to include anyone who “for the purpose of effecting legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.”

Subsection (a)(3). Definition of “attorney.” Rule 502 uses the term “attorney,” instead of “lawyer,” because that is the term used in both the Alabama privilege statute and the Alabama case law. See Ala. Code 1975, § 12-21-161. As under the Alabama case law, this privilege generally attaches only to advice sought from, and communications made to, one authorized to practice law. See Frederick v. State, 39 So. 915 (Ala.1905). The authorization to practice may be in any state or nation. This rule is different from preexisting Alabama practice, however, in that under this rule the privilege attaches even if the one consulted is not authorized to practice law, so long as the would-be client reasonably believes the one consulted possesses such authority. Hawes v. State, 88 Ala. 37, 7 So. 302 (1890).

The drafters anticipate that Rule 502 will apply to the situation where an attorney, authorized to practice law in one jurisdiction, is consulted by a client in another jurisdiction in which the attorney is not authorized to practice. The privilege has been held to apply, for example, to a patent attorney who was licensed in Ohio but was giving advice in California. Paper Converting Mach. Co. v. FMC Corp., 215 F.Supp. 249 (E.D.Wis.1963). See also Georgia-Pacific Plywood Co. v. United States Plywood Corp., 18 F.R.D. 463 (S.D.N.Y.1956).

Subsection (a)(4). Definition of “representative of the attorney.” Under preexisting Alabama case law and statutory law, the only representative held within the scope of the privilege was the attorney’s clerk. See Richards v. Lennox Indus., Inc., 574 So.2d 736 (Ala.1990); Hawes v. State, 88 Ala. 37, 68, 7 So. 302, 313 (1890); Ala. Code 1975, § 12-21-161; C. Gamble, McElroy’s Alabama Evidence § 390.02 (4th ed. 1991). Rule 502 applies the privilege to any person employed by the attorney to assist in rendering professional legal services. See United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) (accountant); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 5-2 (1987).

The phrase “employed by the attorney” is not intended to require that the “representative of the attorney” be on the attorney’s standing payroll. Rather, the term includes any person engaged by the attorney to assist in rendering professional legal services. See United States v. Kovel, 296 F.2d 918 (2d Cir. 1961) (accountant qualifying as one employed by the attorney).

Subsection (a)(5). Definition of “confidential.” This rule, like the preexisting law, defines “confidential” in terms of intent. The attorney-client privilege applies only to those communications that are confidential in the sense that the person or persons making them did not intend that they be disclosed to third persons other than representatives of the client or the lawyer. See Hughes v. Wallace, 429 So.2d 981 (Ala.1983).

Under Rule 502, communications one knowingly makes in the presence of a third person generally are not privileged. Exceptions to this arise, of course, if the third person is a representative of either the client or the lawyer or is otherwise necessary for the communication. Alabama case law has held that the presence of a necessary third person will not preclude the communication from being “confidential” for purposes of the privilege. Branch v. Greene County Bd. of Educ., 553 So.2d 248 (Ala.Civ.App.1988). See C. Gamble, McElroy’s Alabama Evidence § 392.01 (4th ed. 1991).

Section (b). General rule of privilege. Preexisting Alabama law has long affirmed the principle that the privilege covers confidential communications made by the client’s representative to the attorney. It likewise protects such communications when procured by the client from the representative for transmission to the client’s attorney for the purpose of seeking legal advice or legal services. Vacalis v. State, 204 Ala. 345, 86 So. 92 (1920). See Ex parte Great Am. Surplus Lines Ins. Co., 540 So.2d 1357 (Ala.1989).

The breadth of the privilege provided by Rule 502 is expanded significantly as to the persons within its scope. As to subject matter scope, however, the drafters intend that the same expansive interpretation that has been applied under prior Alabama case law be given to the term “communication,” so as to include within that term any knowledge that the attorney acquires from the client and any advice or counsel given to the client. See Cooper v. Mann, 273 Ala. 620, 143 So.2d 637 (1962) (privilege held to apply to all knowledge acquired by an attorney even if acquired through sight alone); Ala. Code 1975, § 12-21-161 (including within the attorney-client privilege testimony as to “any matter or thing, knowledge of which may have been acquired from the client, or as to advice or counsel to the client”). Compare Alabama Rules of Professional Conduct, Rule 1.6(a) (expansively prohibiting a lawyer from revealing “information relating to representation of a client”).

Subsection (b)(3) should be broadly applied to cover any mutual interest that may promote the trial strategies of the parties. See United States v. McPartlin, 595 F.2d 1321 (7th Cir.), cert. denied, 444 U.S. 833 (1979).

Historically, a decreasing majority of courts has applied the attorney-client privilege to statements made by an insured to the insurer, particularly where an attorney has been hired and the statement is made in anticipation of litigation. Some courts have explained this result upon the theory that the insurer is the agent of the insured, while others have theorized that the insurer is the agent of the attorney. An ever-growing minority of courts, however, has concluded that insured-insurer communications are not protected generally by the attorney-client privilege. See Langdon v. Champion, 752 P.2d 999 (Alaska 1988); J. Ludington, Annotation, Insured-Insurer Communications as Privileged, 55 A.L.R.4th 336 (1987). Rule 502 adopts this minority position that the insured’s communications to the insurer are not privileged under Rule 502(b)(4). Communications from the insured fall within the attorney-client privilege only if made directly to the attorney for the insured or the attorney’s representative. This, of course, has no impact upon whether such communication falls within the separate work product privilege.

Because an overbroad application of subsection (b)(4) could lead to abuse in a corporate or business setting, the committee feels it necessary to restate the following safeguards: the burden is upon the party asserting the privilege to prove it; the privilege is to be strictly applied, because it is in derogation of the search for truth; the judge has the responsibility for determining if the privilege applies and should not normally decide the question based solely upon the fact that the client asserts it; the communication may be made only between representatives of the client who are within the “control group” or whose duties are closely related to the matter about which the communication is made; the claimant must prove that the communication was treated within the corporation as confidential; and the person claiming the privilege must show that the communication was made “for the purpose of effecting legal representation for the client.” See subsection (a)(2).

Section (c). Who may claim the privilege. As under traditional Alabama practice, the client is the one entitled to assert the privilege. Mallory v. State, 283 Ala. 636, 219 So.2d 888 (1969). See C. Gamble, McElroy’s Alabama Evidence § 394.01 (4th ed. 1991). While the privilege remains that of the client, it may be asserted by others who represent the client. A guardian or conservator of the client, for example, may claim the privilege. It likewise may be asserted by a deceased client’s personal representative. The privilege, when held by a corporation, association, or organization, may be claimed by the representative, successor, or trustee of the entity holding the privilege. Additionally, the attorney to whom the communication is made is presumed to possess the authority to claim the privilege on behalf of the client.

The attorney’s assertion of the privilege, on behalf of the client, would appear consistent with the Alabama privilege statute, which proclaims the attorney to be incompetent and noncompellable as a witness to relate privileged matters. See Ala. Code 1975, § 12-21-161. It has long been the federal rule, of course, that the privilege may be asserted by the client’s attorney. See Fisher v. United States, 425 U.S. 391 (1976).

The attorney, or the attorney’s representative, may not claim the privilege except in behalf of the client. The committee assumes that the ethics of the profession require the attorney to assert the privilege. See Alabama Rules of Professional Conduct, Rule 1.6. See also Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955 (3d Cir.1984). Compare Fed.R.Evid. 503(c) (rejected) advisory committee’s note (containing this same observation as to the ethical obligation to assert the privilege). The committee would likewise assume that the privilege is to be asserted by the attorney’s representative, particularly in light of the fact that Rule 5.3, Alabama Rules of Professional Conduct, makes the attorney responsible for ensuring that nonlawyer employees of the attorney or the attorney’s firm comply with rules governing the attorney’s professional conduct.

Section (d). Exceptions. There is no privilege under this rule in certain situations.

(1)   Furtherance of crime or fraud. Preexisting Alabama law recognizes that the attorney-client privilege does not apply to confidential communications when the client’s purpose is to secure legal advice regarding the commission of a crime or a fraud. See Ex parte Griffith, 278 Ala. 344, 178 So.2d 169 (1965), cert. denied, 382 U.S. 988 (1966) (“quickie divorce” case in which court observes that the perpetration of fraud is outside the scope of the privilege); Ex parte Enzor, 270 Ala. 254, 117 So.2d 361 (1960) (holding that the attorney-client privilege does not apply to communications in which advice is sought to cover future or contemplated crimes); C. Gamble, McElroy’s Alabama Evidence § 389.02 (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 5.2 (1990). The party asserting fraud has the burden of satisfying the court that the client knew or reasonably should have known that what the client planned to commit was fraud. The client clearly may consult the attorney about conduct, the legality of which is debatable, and still be protected if it later proves to be criminal or fraudulent. While those charging the furtherance of a crime or a fraud have the burden of proving the charge, the purpose of the consultation may appear clear from the content of statements made to the attorney by the client. See Sawyer v. Stanley, 241 Ala. 39, 1 So.2d 21 (1941).

Under this rule, the question whether the attorney’s services are sought for the purpose of aiding the client or someone else in committing or planning to commit a crime or a fraud is to be answered by a “reasonable person” standard – i.e., whether the client knew or reasonably should have known that the contemplated conduct was a crime or a fraud.

(2)   Claimants through the same deceased client. When parties claim through the same deceased client, a relevant communication between the client and the client’s attorney cannot be asserted as privileged. Alabama historically has limited this exception to instances when the two parties claim under a will. Stappas v. Stappas, 271 Ala. 33, 122 So.2d 393 (1960). Subsection (d)(2), however, expands the preclusion to apply whether the parties claim through intestate succession or through inter vivos transactions.

(3)   Breach of duty by an attorney or client. Subsection (d)(3) excludes from the privilege communications that are relevant to charges regarding an attorney’s breach of duty to the client or a client’s breach of duty to the attorney. While no prior Alabama cases specifically state this exclusion, it is consistent with those cases holding that the client may waive the privilege. Dewberry v. Bank of Standing Rock, 227 Ala. 484, 494, 150 So. 463, 471 (1933). Consistent with those cases, the client may be viewed as waiving the privilege either by breach of duty to the attorney or by charging that the attorney breached the duty owed to the client.

The privilege falls when the client sues the attorney on an allegation of breach of duty. The drafters intend the same result when the client sues a representative of the attorney, such as an accountant or a clerk.

(4)   Document attested by an attorney. Subsection (d)(4) exempts an attesting attorney-witness from the privilege, in regard to certain testimony as to the attested document. This principle is consistent with prior Alabama law. See White v. State, 86 Ala. 69, 5 So. 674 (1889). This principle is likewise consistent with Alabama cases holding that the privilege does not attach to communications that the attorney, in the discharge of the attorney’s duty, is of necessity obliged to make public. Ex parte Griffith, 278 Ala. 344, 351, 178 So.2d 169, 176 (1965), cert. denied, 382 U.S. 988 (1966). See also Ala. Code 1975, § 34-3-20.

The attesting-witness exception has been interpreted by some courts as setting aside the attorney-client privilege as to all matters relevant to the validity of the attested document. The language of subsection (d)(4) is intended to reject this view and to embrace what the committee feels to be the preferable rule, that the attorney who acts as an attesting witness can divulge only information received in the attorney’s capacity as an attesting witness and cannot divulge information received in the attorney’s capacity as a lawyer. See Estate of Kime, 144 Cal. App. 3d 246, 193 Cal. Rptr. 718 (1983). Subsection (d)(4) is based upon a similar provision in a corresponding California statute. See Cal. Evid. Code § 959. The committee agrees with the following sentiments of the California Law Revision Commission, appearing in the comments to that California statute:

“This exception relates to the type of communication about which an attesting witness would testify. The mere fact that an attorney acts as an attesting witness should not destroy the lawyer-client privilege as to all statements made concerning the document attested; but the privilege should not prohibit the lawyer from performing the duties expected of an attesting witness.”

(5)   Joint clients. The joint client exception provided by subsection (d)(5) has been long recognized by Alabama cases. See, e.g., Parish v. Gates, 29 Ala. 254 (1856); Nationwide Mut. Ins. Co. v. Smith, 280 Ala. 343, 194 So.2d 505 (1966). This exception has been described thusly:

“When two or more persons acting together become clients of the same lawyer as to a matter of common interest, none of them has, as against another of them, the attorney-client privilege with respect to the matter. Each of them, however, has the attorney-client privilege as against outsiders.” C. Gamble, McElroy’s Alabama Evidence § 392.03 at 935 (4th ed. 1991).

Rule 503. Psychotherapist-patient privilege.

(a)   Definitions. As used in this rule:

(1)   A “patient” is a person who consults or is examined or interviewed by a psychotherapist.

(2)   A “psychotherapist” is (A) a person licensed to practice medicine in any state or nation, or reasonably believed by the patient so to be, while regularly engaged in the diagnosis or treatment of mental or emotional conditions, including alcohol or drug addiction or (B) a person licensed as a psychologist under the laws of any state or nation, while similarly engaged.

(3)   A communication is “confidential” if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the psychotherapist, including members of the patient’s family.

(b)   General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of the patient’s mental or emotional condition, including alcohol or drug addiction, among the patient, the patient’s psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient’s family.

(c)   Who may claim the privilege. The privilege may be claimed by the patient, the patient’s guardian or conservator, or the personal representative of a deceased patient. The person who was the psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.

(d)   Exceptions. (1) PROCEEDINGS FOR HOSPITALIZATION. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist has determined, in the course of diagnosis or treatment, that the patient is in need of hospitalization.

(2)   EXAMINATION BY ORDER OF COURT. If the court orders an examination of the mental or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.

(3)   ACCUSED IN CRIMINAL CASE. There is no privilege under this rule as to an accused in a criminal case who raises the defense of insanity.

(4)   BREACH OF DUTY ARISING OUT OF PSYCHOTHERAPIST-PATIENT RELATIONSHIP. There is no privilege under this rule as to an issue of breach of duty by the psychotherapist to the patient or by the patient to the psychotherapist.

(5)   Child custody cases. There is no privilege under this rule for relevant communications offered in a child custody case in which the mental state of a party is clearly an issue and a proper resolution of the custody question requires disclosure.

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Alabama statutory law has long recognized a psychologist-client privilege. Ala. Code 1975, § 34-26-2. This particular statutory privilege was amended in 1979 to include psychiatrists within its coverage. The legislative act creating the privilege stipulates that it is to be placed upon the same basis as the privilege that arises by law between an attorney and a client; consequently, Rule 503 is modeled after the rule providing for the corresponding attorney-client privilege. See C. Gamble, McElroy’s Alabama Evidence § 414.01 (4th ed. 1991). The language of Rule 503 is taken largely from the Uniform Rules of Evidence. See Unif.R.Evid. 503.

It should be noted that the Alabama Rules of Evidence contain no general physician-patient privilege. Such a privilege has never been recognized in Alabama, either by the legislature or by the courts. See Duncan v. State, 473 So.2d 1203 (Ala.Crim.App.1985). See also C. Gamble, McElroy’s Alabama Evidence § 413.01 (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 5.10 (1990). Communications with a physician may fall within the Rule 503 psychotherapist privilege if the physician is a licensed psychologist or is a practicing psychiatrist. See Ex parte Rudder, 507 So.2d 411 (Ala.1987).

Subsection (a)(1). Definition of “patient.” The preexisting Alabama statutory privilege concerning psychologists used the term “client,” rather than “patient,” to refer to the holder of the privilege. Rule 503 uses the term “patient,” because that word more clearly reflects the fact that the preexisting statute was amended to apply to psychiatrists. Additionally, however, the term “patient” is used in virtually all other state versions of the present privilege. See, e.g., Fla. Stat. Ann. § 90.503; Miss.R.Evid. 503; Wis. Stat. Ann. § 905.04. See also B.W. Best, Annotation, Privilege, in Judicial or Quasi-Judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient, 44 A.L.R.3d 24 (1972).

Subsection (a)(2). Definition of “psychotherapist.” This term includes licensed psychologists and psychiatrists. This composite description is used to embrace both of those professional groups that were included under the preexisting statute to which Rule 503 is the successor. Additionally, the term “psychotherapist” is the most common term used in stating this privilege as it exists in other states. See, e.g., Haw.R.Evid. 504.1; N.M.R.Evid. 504; Or.R.Evid. 504.

The Rule 503 privilege applies so long as the patient reasonably believes the person to be licensed to practice medicine. That principle is similar to a principle applicable to the attorney-client privilege. See Rule 502(a)(3). No such principle, however, applies to persons not psychologists but reasonably believed to be psychologists; persons acting as, or believed to be, psychologists must be in fact licensed for the privilege to apply. This distinction, made also both in the Uniform Rules of Evidence and in the corresponding provision deleted from the Federal Rules of Evidence, is said to be “justified by the number of persons, other than psychiatrists, purporting to render psychotherapeutic aid and the variety of their theories.” Fed.R.Evid. 504 (deleted) (advisory committee note).

Subsection (a)(3). Definition of “confidential.” The predecessor statute, establishing the privileges applicable to both psychologists and psychiatrists, provided that these were to be placed upon the same basis as the attorney-client privilege. Ala. Code 1975, § 34-26-2. Accordingly, to define “confidential communication,” Rule 503(a)(3) uses language similar to that found in the corresponding rule setting forth the attorney-client privilege. See Rule 502(a)(5). This then means that the question of confidentiality is largely one of intent as judged by the facts; consequently, communications made in the known presence of third parties are not privileged unless those third parties are necessary to either the rendition of the services or the transmission of the communication. The term “communication” is given a broad interpretation so as to include the medical records created during the psychotherapist-patient relationship. See Ex parte Rudder, 507 So.2d 411 (Ala.1987).

Section (b). General rule of privilege. As recognized in the comments to section (a), the psychotherapist-patient privilege is to be applied on largely the same basis as the attorney-client privilege. Compare Ala.R.Evid. 502(b). This necessarily means that the breadth of the privilege extends well beyond the psychotherapist and the patient themselves to encompass others who are necessary to the communication or delivery of the psychological services.

Section (c). Who may claim the privilege. As under Rule 502, where the privilege belongs to the client, so here it belongs to the patient. While the privilege remains that of the patient, it may be asserted by others who represent the patient. A guardian or conservator of the patient, for example, may claim the privilege. It likewise may be asserted by a deceased patient’s personal representative. The psychotherapist to whom the communication is made is presumed to have the authority, in the absence of evidence to the contrary, to claim the privilege in behalf of the patient. Compare Ala.R.Evid. 502(c).

Section (d). Exceptions.

(1)   Proceedings for hospitalization. Communications relevant to an issue in commitment proceedings do not fall within the protection of the Rule 503 privilege if the psychotherapist involved has determined that hospitalization is necessary.

(2)   Examination by order of court. No privilege attaches to communications made during a court-ordered examination of a patient’s mental or emotional condition. The scope of the exception, however, is limited generally to communications relevant to the particular purpose for which the judge ordered the examination.

This exception is consistent with several corresponding principles applicable in the area of criminal law and criminal procedure. The preexisting statutory psychiatrist-patient or psychologist-patient privilege is not applicable to reports serving as the basis for the court-authorized release of a person from a state mental hospital after having been found not guilty by reason of insanity, mental disease, or defect. Ala. Code 1975, § 15-16-69.

The Alabama Rules of Criminal Procedure authorize a court-ordered examination into a defendant’s competency to stand trial. Ala.R.Crim.P. 11.2(a)(1). The results of such an examination are admissible on the issue of such competency but are not admissible during the ultimate trial for the charged offense. Ala.R.Crim.P. 11.2(b)(1).

Examinations to determine the defendant’s mental condition at the time of the offense may likewise be ordered by the court. Ala.R.Crim.P. 11.2(b)(2). The results of such examinations are admissible so long as the defendant has not subsequently withdrawn his or her plea of not guilty by reason of mental disease or defect. Ala.R.Crim.P. 11.2(b)(2). Even if there remains a plea of not guilty by reason of insanity, statements by the defendant during such an examination – as well as testimony or evidence based upon or derived from such statements – are admissible only as to the issue of the defendant’s mental condition at the time of the offense and only if the defendant has introduced testimony as to such mental condition. Ala.R.Crim.P. 11.2(b)(2).

(3)   Accused in criminal case. This rule continues Alabama’s judicially created exception to the statutory psychotherapist-patient privilege. The privilege is unavailable in a criminal trial where the defendant raises the defense of insanity. See Free v. State, 455 So.2d 137 (Ala.Crim.App.1984); Magwood v. State, 426 So.2d 918 (Ala.Crim.App.1982), aff’d, 426 So.2d 929 (Ala.), cert. denied, 462 U.S. 1124 (1983).

In many respects, this exception is based upon the concept of waiver and has been long recognized in the American legal system. See United States v. Meagher, 531 F.2d 752, cert. denied, 429 U.S. 853 (1976) (holding that insanity plea opens the door to correspondence between the defendant and his or her treating psychiatrist). Additionally, this exception is consistent with several provisions found in the Alabama Rules of Criminal Procedure. An accused’s offering proof as to his or her mental condition at the time of the offense, for example, opens the door to statements made to a psychiatrist or psychologist during a court-ordered examination. Ala.R.Crim.P. 11.2(b)(2). Reports of court-appointed psychiatrists or psychologists are to be made available to both the defense attorney and the district attorney. Ala.R.Crim.P. 11.5(a). Both the defense and the prosecution are to be given access to the names and addresses of all psychiatrists or psychologists who have examined either the defendant or evidence in the case, along with the results of mental examinations, scientific tests, experiments, or comparisons. This latter disclosure includes access to written reports or statements. Ala.R.Crim.P. 11.4(b). Compare Ark.R.Evid. 503(d)(3); N.D.R.Evid. 503(d)(3); Alaska R.Evid. 504(d)(1); Del.R.Evid. 503(d)(3); Fla.Stat.Ann. § 0.503(4)(c); Haw.R.Evid. 504.1(d)(3); Idaho R.Evid. 503(d)(3); Me.R.Evid. 503(e)(3); Miss.R.Evid. 503(f); Neb.Rev.Stat. § 27-504(4)(c); Nev.Rev.Stat. § 49.245(3); N.M.R.Evid. 504(d)(3); Okla. Stat. tit. 12, § 2503(D)(3); Or.R.Evid. 504(4)(b); Vt.R.Evid. 503(d)(3); Wis.Stat. Ann. § 905.04(4)(c).

(4)   Breach of duty arising out of psychotherapist-patient relationship. The Alabama statute upon which Rule 503 is based calls for the psychotherapist-patient privilege to be applied as the attorney-client privilege is applied. Ala. Code 1975, § 34-26-2. Accordingly, a “breach of duty” exception is included here, just as such an exception is included in regard to the attorney-client privilege. See Ala.R.Evid. 502(d)(4). Cf. Fed.R.Evid. 503(d)(3).

(5)   Child custody cases. It is arguable that any person seeking custody has thereby placed his or her mental or emotional condition at issue. Accordingly, this rule continues Alabama’s preexisting, judicially created, exception to the psychotherapist-patient privilege. See Harbin v. Harbin, 495 So.2d 72 (Ala.Civ.App.1986) (holding that the psychologist-patient privilege yields when the mental state of a party to a custody case is clearly in controversy); Matter of Von Goyt, 461 So.2d 821 (Ala.Civ.App.1984) (psychologist-patient privilege inapplicable to protect medical records of litigant in child custody case).

Rule 503A. Counselor-client privilege.

(a)   Definitions. As used in this rule:

(1)   The term “client” means a person who, for the purpose of securing professional counseling services, consults with a licensed professional counselor or a certified counselor associate. It also means a person who, for the purpose of securing counseling services as the result of either sexual assault or family violence, consults with a victim counselor.

(2)   A “licensed professional counselor” is any person who holds himself or herself out to the public by any title or description of services incorporating the words “licensed professional counselor” or “licensed counselor”; who offers to render professional counseling services to individuals, groups, organizations, corporations, institutions, government agencies, or the general public, implying that the person is licensed and trained, experienced or expert in counseling; and who holds a current, valid license to engage in the private practice of counseling.

(3)   A communication is “confidential” if it is not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional counseling services to the client or those to whom disclosure is reasonably necessary for the transmission of the communication.

(4)   “Counselor associate” is any person who has been certified by the Alabama Board of Examiners in Counseling to offer counseling services under the supervision of a licensed professional counselor.

(5)   “Counseling services” consist of all acts and behaviors that constitute the “practice of counseling” as that term is defined in this rule.

(6)   The “practice of counseling” involves the rendering or offering to render counseling services such as, among others, the following methods and procedures employed by the counseling profession:

(A)   Counseling. Assisting a person, through the counseling relationship, to develop understanding of personal problems, to define goals, and to plan action reflecting the person’s interests, abilities, aptitudes, and needs as these are related to personal-social concerns, education progress, and occupations and careers.

(B)   Appraisal activities. Selecting, administering, scoring and interpreting instruments designed to assess an individual’s aptitudes, attitudes, abilities, achievements, interests, and personal characteristics, but not including the use of projective techniques in the assessment of personality.

(C)   Counseling, guidance, and personnel consulting. Interpreting or reporting upon scientific fact or theory in counseling, guidance, and personnel services to provide assistance in solving some current or potential problems of individuals, groups, or organizations.

(D)   Referral activities. The evaluating of data to identify problems and to determine advisability of referral to other specialists.

(E)   Research activities. The designing, conducting, and interpreting of research with human subjects.

(F)   Victim counseling. The providing of counseling to victims for any emotional or psychological impact resulting from a sexual assault or family violence.

(7)   “Victim counselor” means any employee or supervised volunteer of a victim counseling center or other agency, business, or organization that provides counseling to victims, who is not affiliated with a law enforcement agency or prosecutor’s office and whose duties include treating victims for any emotional or psychological condition resulting from a sexual assault or family violence.

(8)   “Sexual assault” includes any sexual offense set out in Ala. Code 1975, §§ 13A-6-60 through 13A-6-70.

(9)   “Family violence” means the occurrence of one or more of the following acts between family or household members:

(A)   Attempting to cause or causing physical harm.

(B)   Placing another in fear of imminent serious physical harm.

(10)   The designation “family or household members” encompasses children, spouses, former spouses, persons of the opposite sex living as spouses now or in the past, or persons 60 years of age or older living in the same household and related by blood or marriage.

(11)   “Victim counseling center” means a private organization or unit of a government agency which has as one of its primary purposes the treatment of victims for any emotional or psychological condition resulting from a sexual assault or family violence.

(b)   General rule of privilege. A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made for the purpose of facilitating the rendition of counseling services to the client.

(c)   Who may claim the privilege. The privilege may be claimed by the client, the client’s guardian or conservator, or the personal representative of a deceased client. The person who was the licensed counselor, counselor associate, or victim counselor at the time of the communication is presumed to have authority to claim the privilege, but only on behalf of the client.

(d)   Exceptions.

(1)   PROCEEDINGS FOR HOSPITALIZATION. In proceedings to hospitalize the client for mental illness, there is no privilege under this rule for communications relevant to an issue in those proceedings if the counselor or counselor associate has determined, in the course of counseling, that the client is in need of hospitalization.

(2)   EXAMINATION BY ORDER OF COURT. If the court orders an examination of the mental or emotional condition of a client, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered, unless the court orders otherwise.

(3)   WHEN THE CLIENT’S CONDITION IS AN ELEMENT OF A CLAIM OR A DEFENSE. There is no privilege under this rule as to a communication relevant to an issue regarding the mental or emotional condition of the client, in any proceeding in which the client relies upon the condition as an element of the client’s claim or defense, or, after the client’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.

(4)   BREACH OF DUTY ARISING OUT OF THE COUNSELOR-CLIENT RELATIONSHIP. There is no privilege under this rule as to an issue of breach of duty by the counselor, counselor associate, or victim counselor to the client or by the client to the counselor, counselor associate, or victim counselor.

(5)   VICTIM COUNSELING IN CIVIL CASES. There is no privilege under this rule in civil cases as to a communication made to facilitate victim counseling when the person conducting the counseling is neither a licensed professional counselor nor a counselor associate, except that under no circumstances may a victim counselor or a victim be compelled to provide testimony in any proceeding that would identify the name, address, location, or telephone number of a “safe house,” abuse shelter, or other facility that provided temporary emergency shelter to the victim of the offense or transaction that is the subject of the proceeding, unless the facility is a party to the proceeding.

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While the psychotherapist-patient privilege of Rule 503 is based generally upon a preexisting Alabama statute, it nevertheless represents a nationally recognized privilege principle. Such a privilege is expressed in the evidence rules of virtually every state that has adopted rules of evidence based upon either the Federal Rules of Evidence or the Uniform Rules of Evidence. In contrast, however, the Rule 503A counselor-client privilege, created largely by combining two preexisting Alabama statutes, is generally not found in the primary body of evidence law nationally. The committee takes no position as to the merits of those statutes. Rather, their provisions are incorporated into the Alabama Rules of Evidence based upon a continuing philosophy that greater trial competency will result if, wherever feasible, external statutory rules of evidence are merged into these rules.

Rule 503A may be interpreted to include all licensed counselors who provide counseling services; however, its foundation lies in two separate statutes of a more specific applicability. The first is that statute creating, at least in criminal proceedings, a privilege for communications between the victim of sexual assault or family violence and a victim counselor. Ala. Code 1975, §§ 15-23-40 to -46. The second, and the one of broader application, is that statute creating a privilege for communications, in all types of cases, between a licensed counselor or counselor associate and a client. Ala. Code 1975, §§ 34-8A-1 to -21. Rule 503A is intended to supersede these preexisting statutes, except as might otherwise be expressly provided.

It should be noted that there basically are two types of persons whose counseling may be brought within the present privilege. First, there is the licensed professional counselor or the counselor associate, both of whom are either licensed or certified by the Alabama Board of Examiners in Counseling and who provide a broad range of counseling services. Second, there is the employee or supervised volunteer who provides counseling for any emotional or psychological condition resulting from a sexual assault or family violence. The field of operation for this privilege is broader for the first of these two groups. For example, the privilege arising in regard to communications with a victim counselor can generally be asserted only in a criminal case. If the victim counselor happens also to qualify as a licensed professional counselor or as a counselor associate, however, then the privilege could be asserted even in a civil case.

Subsection (a)(1). Definition of “client.” A client is anyone who consults either a licensed professional counselor or a certified counselor associate for the rendition of professional counseling services. See Ala. Code 1975, § 34-8A-21. Additionally, the term “client” includes a person who consults a victim counselor for assistance in overcoming adverse emotional or psychological effects of a sexual assault or family violence. See Ala. Code 1975, § 15-23-41(2).

Subsection (a)(2). Definition of “licensed professional counselor.” The definition of “licensed professional counselor” is taken from the statute upon which the privilege is based. See Ala. Code 1975, § 34-8A-2(1). See also Ala. Code 1975, § 34-8A-7 (containing the statutory requirements for obtaining a professional counselor’s license). The statutory language limiting this privilege to those who render professional counseling services in private practice “for a fee” is abandoned.

Subsection (a)(3). Definition of “confidential.” The major variation in language made during the conversion of this privilege from statutory to rule form is in the definition of “confidential” as applied to communications. This is a change in form, rather than substance, and is intended to make the language in Rule 503A conform to the language found in other rules creating privileges, particularly the rule dealing with the psychotherapist-patient privilege. Compare Ala.R.Evid. 503(a)(3). Whether a communication is confidential largely constitutes a question of intent, to be measured by the objective facts. If it is intended that the communication be disclosed to third parties, then generally there is no privilege. Communication in the presence of a known third party, for example, generally destroys the privilege, because in that situation it is generally apparent that no confidentiality was intended. Rule 503A provides, however, that the presence of a third party does not destroy the privilege if disclosure to that person is necessary to the client-counselor communication.

As it is in regard to other privileges, the term “communication” is to be broadly interpreted. Consistent with the preexisting statute applicable to the victim-counselor privilege, the Rule 503A privilege extends to preclude the production of records when they concern confidential communications. See Ala. Code 1975, § 15-23-42(a).

Subsection (a)(4). Definition of “counselor associate.” The counselor associate is included, along with the licensed professional counselor, within the purview of the present privilege. The definition is taken from the preexisting statute. Ala. Code 1975, § 34-8A-2(2). In addition to being appropriately certified by the Board of Examiners in Counseling, the counselor associate must be acting under the supervision of a licensed professional counselor.

Subsection (a)(5). Definition of “counseling services.” The privilege arises when the client consults with the counselor for the delivery of counseling services as part of the practice of counseling. See Ala. Code 1975, § 34-8A-2(4).

Subsection (a)(6). Definition of “practice of counseling.” The “practice of counseling” includes, but is not limited to, those methods and procedures of counseling listed in the rule. This list of illustrations is taken directly from the statute upon which the privilege is based. Ala. Code 1975, § 34-8A-2(5). Included within the term is counseling victims “for any emotional or psychological condition resulting from a sexual assault or family violence.” Compare Ala. Code 1975, § 15-23-41(8).

Under the original statute upon which Rule 503A is based, the privilege applicable to licensed professional counselors and counselor associates was limited to those in the private practice of counseling, i.e., those rendering counseling services in private practice, for a fee, monetary or otherwise. Ala. Code 1975, § 34-8A-2(5). Rule 503A discontinues that limitation.

Subsection (a)(7). Definition of “victim counselor.” This definition is taken from the statute upon which those provisions of Rule 503A relating to victim counselors are based. Ala. Code 1975, § 15-23-41(8). This particular capacity arises only as to counseling for an emotional or psychological condition resulting from sexual assault or family violence.

Subsection (a)(8). Definition of “sexual assault.” This definition conforms completely to that found in the predecessor statute that originally created the victim-counselor privilege. See Ala. Code 1975, § 15-23-41(3).

Subsection (a)(9). Definition of “family violence.” This definition is taken from the statutory language upon which the present privilege is based. See Ala. Code 1975, § 15-23-41(4).

Subsection (a)(10). Definition of “family or household members.” This term, which limits those against whom family violence may be committed, retains its preexisting statutory definition. See Ala. Code 1975, § 15-23-41(5).

Subsection (a)(11). Definition of “victim counseling center.” This definition, taken from statutory language, serves to modify the victim-counselor segment of the Rule 503A privilege. See Ala. Code 1975, § 14-23-41(7).

Section (b). General rule of privilege. The language used to state the counselor-client privilege is similar to that used to state other privileges. Compare Ala.R.Evid. 503. This is consistent with the legislative mandate that the counselor-client privilege is to be placed upon the same basis as the attorney-client privilege. See Ala. Code 1975, § 34-8A-21. No privilege arises, of course, unless the counselor is consulted in his or her capacity as a provider of counseling services. Additionally, the privilege applies only to communications that are confidential.

Like other rules dealing with privileges, Rule 503A is written so as to preclude any assertion of the third-party eavesdropper rule, created at common law, under which a third-party eavesdropper generally could relate any privileged conversation the eavesdropper had overheard. Compare Ala.R.Evid. 503(b). This result is accomplished by use of the words “to prevent any other person from disclosing.”

Section (c). Who may claim the privilege. This privilege belongs to the person who sought the counseling. This means that it may be asserted by the client (or victim) or the client’s legal representative. Additionally, the counselor may assert the privilege on behalf of the client or victim.

As a general rule, the privilege does not belong to the counselor. There is no question that this is true with regard to licensed professional counselors and counselor associates, because they are treated, for purposes of privilege, as attorneys are treated. Ala. Code 1975, § 34-8A-21. Compare Ala.R.Evid. 502(c). The preexisting statute regarding victim counselors, however, contained language indicating that the counselor held an independent right to assert the privilege. See Ala. Code 1975, § 15-23-42(a). Rule 503A does not incorporate that language, in order to be consistent with all other rules setting out privileges; however, it makes one exception. That exception is that in no case may the victim counselor be required to provide testimony that would disclose the name, address, location, or telephone number of a safe house, abuse shelter, or other facility, providing temporary emergency shelter to the victim of the offense or transaction that is the subject of the civil or criminal proceeding, unless the facility is a party to the proceeding. See Ala.R.Evid. 503A(d)(5).

Section (d). Exceptions.

Subsection (1). Proceedings for hospitalization. Communications relevant to an issue in commitment proceedings do not fall within the protection of the present privilege if the licensed professional counselor or counselor associate has determined that hospitalization is needed. Compare Ala.R.Evid. 503(d)(1). This exception would be unnecessary with regard to victim counselors, because no privilege regarding them may be asserted in civil cases. See Ala.R.Evid. 503A(d)(5). Compare Ala. Code 1975, § 15-23-42.

Subsection (2). Examination by order of court. No privilege attaches to communications made during a court-ordered examination of a client’s mental or emotional condition. The scope of the exception, however, is limited generally to communications relevant to the particular purpose for which the judge ordered the examination. This exception is consistent with a similar exception to the psychotherapist-patient privilege. See Ala.R.Evid. 503(d)(2). It is envisioned, of course, that this exception rarely would be needed in the context of the victim counselor who is a nonprofessional employee or volunteer; this is because the court customarily would not order an examination by such a person. Additionally, one should remember that this Rule 503A privilege, as it relates to victim counselors, generally has no application in civil cases.

Subsection (3). When the client’s condition is an element of a claim or a defense. In any proceeding in which the client relies upon his or her mental or emotional condition, as an element of either a claim or a defense, the privilege does not protect communications that are relevant to that condition. This exception is identical to an exception to the psychotherapist-patient privilege. See Ala.R.Evid. § 503(d)(3). Compare Harbin v. Harbin, 495 So.2d 72 (Ala.Civ.App.1986) (holding that the psychologist-patient privilege is not applicable to protect communications that are relevant to show a party’s mental state in a custody case).

No need for this exception will arise in civil cases, in regard to victim counselors who do not qualify as either licensed professional counselors or certified counselor associates. This is because the privilege applies to communications made to such persons only when the communications are offered in a criminal case. See Ala.R.Evid. 503A(d)(4). Compare Ala. Code 1975, § 15-23-42.

Subsection (4). Breach of duty arising out of the counselor-client relationship. No privilege arises as to communications relevant to litigation in which the client sues the counselor for breach of duty or in which the counselor sues the client. This exception is similar to that found in the rule setting out the psychotherapist-patient privilege. See Ala.R.Evid. 503(d)(4). No such exception is expressly set out in the statute originally creating the counselor-client privilege; however, that statute does provide that the privilege is to be treated on a par with the attorney-client privilege and this latter privilege contains such an exception. See Ala.R.Evid. 502(d)(3). The victim counselor statute, which is the basis for recognizing the present privilege regarding victim counseling, in criminal cases, does contain an exception of this nature. The statute provides:

“[I]f a victim brings suit against a victim counselor or the agency, business, or organization in which the victim counselor was employed or served as a volunteer at the time of the counseling relationship and the suit alleges malpractice during the counseling relationship, the victim counselor may testify or produce records regarding confidential communications with the victim and is not liable for doing so.” Ala. Code 1975, § 15-23-43(b).

Subsection (5). Victim counseling in civil cases. This exception carries forward the preexisting statutory provision that the victim-counselor privilege does not apply in civil cases except as it might preclude the victim or counselor from divulging information as to the location of an emergency victim-services facility. See Ala. Code 1975, § 15-23-42. If the victim counselor qualifies as either a licensed professional counselor or a certified counselor associate, then this exception would not apply; accordingly, the confidential communications with the client/victim would be privileged in both civil and criminal cases.

Rule 504. Husband-wife privilege.

(a)   Definition of “confidential” communication. A communication is “confidential” if it is made during marriage privately by any person to that person’s spouse and is not intended for disclosure to any other person.

(b)   General rule of privilege. In any civil or criminal proceeding, a person has a privilege to refuse to testify, or to prevent any person from testifying, as to any confidential communication made by one spouse to the other during the marriage.

(c)   Who may claim the privilege. The privilege may be claimed by either spouse, the lawyer for either spouse in that spouse’s behalf, the guardian or conservator of either spouse, or the personal representative of a deceased spouse. The authority of those named to claim the privilege in the spouse’s behalf is presumed in the absence of evidence to the contrary.

(d)   Exceptions. There is no privilege under this rule:

(1)   PARTIES TO A CIVIL ACTION. In any civil proceeding in which the spouses are adverse parties.

(2)   FURTHERANCE OF CRIME. In any criminal proceeding in which the spouses are alleged to have acted jointly in the commission of the crime charged.

(3)   CRIMINAL ACTION. In a criminal action or proceeding in which one spouse is charged with a crime against the person or property of (A) the other spouse, (B) a minor child of either, (C) a person residing in the household of either, or (D) a third person if the crime is committed in the course of committing a crime against any of the persons previously named in this sentence.

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For historical perspective, it is useful to note that spouses were once incompetent to testify for or against each other in civil or criminal cases. The only remaining vestige of this marital disqualification or incompetency is found in a statute that provides: “The husband and wife may testify either for or against each other in criminal cases, but shall not be compelled so to do.” Ala. Code 1975, § 12-21-227. This statute is interpreted to mean that a spouse may take the witness stand against an accused spouse if he or she decides to do so. Such a witness may be characterized as competent, but not compellable. This principle is sometimes described as providing the witness spouse a privilege to testify or not. Such a privilege, however, is not to be confused with the privilege set forth in Rule 504. Even if a witness spouse decides to take the stand against an accused spouse, such a witness yet remains precluded generally from divulging confidential, inter-spousal communications of the accused spouse. The preexisting statutory and case law dealing with the marital disqualification or competency question stands unaffected by the adoption of Rule 504. See Arnold v. State, 353 So.2d 524 (Ala.1977); C. Gamble, McElroy’s Alabama Evidence § 103.01 (4th ed. 1991).

Section (a). Definition of “confidential” communication. Consistent with the language setting out other evidentiary privileges, the language of Rule 504 defines confidentiality in terms of the communicating spouse’s intent. No privilege arises unless the communicating spouse intends the communication to be confidential. This is fully consistent with preexisting Alabama law, which will continue to evolve the corresponding rules with regard to when the objective facts show intended confidentiality. See, e.g., Owen v. State, 78 Ala. 425 (1885); Harris v. State, 395 So.2d 1063 (Ala.Crim.App.1980), cert. denied, 395 So.2d 1069 (Ala.1981); C. Gamble, McElroy’s Alabama Evidence § 103.01(4) (4th ed. 1991).

Section (b). General rule of privilege. This section perpetuates Alabama’s preexisting husband-wife privilege for confidential communications. It should be noted that Alabama is among those states whose courts interpret the term “communication” as including acts and transactions that are both communicative and noncommunicative. Indeed, any act performed with the confidence of the marriage in mind has been held to be privileged. This rule is not intended to abrogate this expansive interpretation of the term “communication” to include any act that one spouse would not have committed in the presence of the other but for the confidential, husband-wife relationship. See Arnold v. State, 353 So.2d 524 (Ala.1977) (wife precluded from testifying in arson prosecution to her ride with accused husband around his burned building immediately after the fire); Cooper v. Mann, 273 Ala. 620, 143 So.2d 637 (1962). Several other states include noncommunicative acts, facts, conditions, and transactions within the protection of the privilege. See Smith v. State, 344 So.2d 915 (Fla.Dist.Ct.App.), cert. denied, 353 So.2d 679 (Fla.1977); State v. Robbins, 35 Wash. 2d 389, 213 P.2d 310 (1950); Menefee v. Commonwealth, 189 Va. 900, 55 S.E.2d 9 (1949). Other jurisdictions have limited the interpretation of “communication” to include only expressions – i.e., statements and acts that are communicative in nature. See, e.g., Pereira v. United States, 347 U.S. 1 (1954); People v. Krankel, 131 Ill.App.3d 887, 87 Ill. Dec. 75, 476 N.E.2d 777 (1985); State v. Smith, 384 A.2d 687 (Me.1978).

It is not required that the parties be married at the time the communication is offered as evidence. Rather, they must have been married at the time the communication occurred. See Long v. State, 86 Ala. 36, 5 So. 443 (1889).

Section (c). Who may claim the privilege. The inter-spousal privilege is recognized as belonging to both spouses rather than solely to the communicating spouse. While preexisting Alabama law on this point is not a model of clarity, there is preexisting case law suggesting that both the speaking and the receiving spouse may assert the privilege. See Cooper v. Mann, 273 Ala. 620, 143 So.2d 637 (1962) (both husband and wife, parties in the action, were permitted to raise the communication privilege as against discovery even though the wife received the requested information from her husband). Nothing in Rule 504 requires that the spouse asserting the privilege be a party to the proceedings in question. Compare Swoope v. State, 115 Ala. 40, 22 So. 479 (1897) (wife called by the prosecution, and state’s privilege objection sustained when accused husband asked about wife’s statements to the husband).

The privilege may be asserted in a spouse’s behalf by that spouse’s lawyer, guardian, or conservator, or by a deceased spouse’s personal representative. While there exists no preexisting Alabama authority on this point, it is consistent with at least one criminal appellate decision in which the prosecution was allowed to lodge a privilege objection in behalf of the state’s spouse-witness when she was asked about privileged matters by the husband’s defense counsel on cross-examination. See Swoope v. State, 115 Ala. 40, 22 So. 479 (1897).

A spouse may assert the privilege to prevent any person’s divulging the confidential communication. A third-party is thus precluded from relating a husband-wife communication that has been overheard by accident or by eavesdropping. This principle is inconsistent with historic Alabama practice, at least as evidenced by decisions from appellate courts other than the Alabama Supreme Court. See Howton v. State, 391 So.2d 147 (Ala.Crim.App.1980); Phillips v. State, 11 Ala.App. 168, 65 So. 673 (1914).

Section (d). Exceptions.

(1)   Parties to a civil action. If the spouses are adverse parties in a civil proceeding, it would appear unnecessary to protect their marital relationship from the disclosure of confidential communications between them. See E. Cleary, McCormick on Evidence § 84 (3d ed. 1984). An analogous exception is recognized within the attorney-client privilege for instances where clients jointly consult with the same attorney and then initiate legal action among themselves. See Ala.R.Evid. 502(d)(5). A similar exception is likewise common among the forms of the husband-wife privilege as adopted by the various states. Compare Alaska R.Evid. 505(a)(2)(A), Fla. Stat. Ann. § 90-504(3)(a), Idaho R.Evid. 504(d)(4), Me.R.Evid. 504(d)(4), Neb. Rev. Stat. § 27-505(3)(c) (limiting the exception to civil actions relating to divorce, annulment, or support), Nev. Rev. Stat. § 49.295(2)(a), N.M.R.Evid. 505(d)(3), Or.R.Evid. 505(4)(c), Wis. Stat. Ann. § 905.05(3)(a).

A similar but more limited exception is recognized, albeit almost by implication, under preexisting Alabama law. In divorce actions, one spouse historically has been permitted to relate statements of the other spouse, particularly when those statements go to prove adultery. See Lyall v. Lyall, 250 Ala. 635, 35 So.2d 550 (1948). Compare Hubbard v. Hubbard, 55 Ala.App. 521, 317 So.2d 489, cert. denied, 294 Ala. 759, 317 So.2d 492 (1975) (confessions of adultery from one spouse to the other admitted).

(2)   Furtherance of crime. Any inter-spousal communication falls outside the privilege if it is made in furtherance of a crime in which both spouses are engaged. As under the attorney-client privilege, communications in furtherance of criminal activity are not immune from disclosure. Compare Ala.R.Evid. 502(d)(1).

This rule is consistent with preexisting case law adopting an exception to the husband-wife privilege for communications between spouses relating to crimes in which they are jointly participating when the communications occur. State v. Browder, 486 So.2d 504 (Ala. Crim. App. 1986). This exception applies only to communications that are in furtherance of, or pertain to, the crime charged. The communications are nonprivileged, even if the testifying spouse’s only involvement in the crime charged is as an accessory after the fact. See United States v. Mendoza, 574 F.2d 1373 (5th Cir.), cert. denied, 439 U.S. 988 (1978).

(3)   Criminal action. Commentators have long suggested that grave injustice is avoided by precluding an assertion of the marital incompetency privilege – which may keep a witness spouse off the stand completely – in cases where the charged offense is committed against the witness spouse. 8 J. Wigmore, Wigmore on Evidence § 2239 (McNaughton rev. 1961). This position has been embraced by the Supreme Court of the United States. Wyatt v. United States, 362 U.S. 525 (1960) (denying accused’s motion to exclude wife’s testimony in Mann Act prosecution where she was the woman who was transported for immoral purposes). Such an exception to the marital incompetency or disqualification privilege was recognized in early Alabama decisions holding that the spouse’s testimony was compellable by the state in a case where the crime was committed against the spouse. See, e.g., State v. Neill, 6 Ala. 685 (1844); Clarke v. State, 117 Ala. 1, 23 So. 671 (1898). It would be reasonable to conclude that such compellability of the victim spouse would hold today in Alabama even after enactment of the competency statute, which provides that the privilege of testifying or not is solely that of the witness spouse (contrasted with the ability to divulge a confidential communication). See McCoy v. State, 221 Ala. 466, 129 So. 21 (1930).

Based upon this exception to the spousal incompetency rule, subsection (d)(3) accomplishes two things. First, it establishes the same exception in the area of husband-wife confidential communications – meaning that an accused spouse may not object to the witness spouse’s divulging confidential inter-spousal communications when they are offered in a criminal prosecution in which the witness spouse is the victim. Second, it expands the exception beyond crimes committed against the spouse, to include those committed against a minor child of either spouse and crimes committed against certain others. This exception is identical to an exception found in most jurisdictions that have conducted modern codification of their evidence rules. See Ark.R.Evid. 504(d), N.D.R.Evid. 504(d), Fla. Stat. Ann. § 90.504(3)(b), Haw. R. Evid. 505(c)(1), Idaho R. Evid. 504(d)(2), Miss.R.Evid. 504(d), Okla. Stat. tit. 12, § 2504(D), S.D. Codified Laws Ann. § 19-13-15, Vt.R.Evid. 504(d). See also Unif.R.Evid. 504(c). The term “child,” as used in subsection (d)(3), is not limited to a natural child. See Daniels v. State, 681 P.2d 341 (Alaska App.1984).

The committee envisions that this exception set out in subsection (d)(3) will continue to apply, as provided under the preexisting statute, in criminal desertion and nonsupport proceedings. See Ala. Code 1975, § 30-4-57.

Rule 505. Communications to clergymen.

(a)   Definitions. As used in this rule:

(1)   A “clergyman” is any duly ordained, licensed, or commissioned minister, pastor, priest, rabbi, or practitioner of any bona fide established church or religious organization; the term “clergyman” includes, and is limited to, any person who regularly, as a vocation, devotes a substantial portion of his or her time and abilities to the service of his or her church or religious organization.

(2)   A communication is “confidential” if it is made privately and is not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

(b)   General rule of privilege. If any person shall communicate with a clergyman in the clergyman’s professional capacity and in a confidential manner, then that person or the clergyman shall have a privilege to refuse to disclose, and to prevent another from disclosing, that confidential communication.

(c)   Who may claim the privilege. The privilege may be claimed by the communicating person, by that person’s guardian or conservator, or by that person’s personal representative if that person has died, or by the clergyman.

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Rule 505 tracks, but supersedes, a preexisting statute creating a clergyman privilege in Alabama. Ala. Code 1975, § 12-21-166. See C. Gamble, McElroy’s Alabama Evidence § 419.01 (4th ed. 1991). Additionally, some provisions are taken from Unif.R.Evid. 505 and Fed.R.Evid. 506 (not enacted). The development of a clergyman privilege, prior to the broad adoption of evidence rules, had occurred in about two-thirds of the states and the privilege had been adopted in those states by both statute and case law. See 8 J. Wigmore, Wigmore on Evidence § 2395 (McNaughton rev. 1961).

Sub (a)(1). Definition of “clergyman.” This definition of “clergyman” is necessarily a broad one. It is not sufficiently broad, however, to include “all self-denominated “ministers.” Fed.R.Evid. 506 (not enacted) advisory committee’s note. The terms “ordained,” “licensed,” and “commissioned” focus upon the rules of the particular church or religious organization that govern entrance into the ministry. A good explanation of the term “bona fide established church or religious organization” can be found in the following passage taken from the advisory notes to the proposed, but rejected, Federal Rule of Evidence 506:

“A fair construction of the language requires that the person to whom the status is sought to be attached be regularly engaged in activities conforming at least in a general way with those of a Catholic priest, Jewish rabbi, or minister of an established Protestant denomination, though not necessarily on a full-time basis.”

Like the statutory privilege it supersedes, the Rule 505 privilege does not attach when the person consulted is not in fact a clergyman, even if the person consulting reasonably believes that person to be a clergyman. This principle is consistent with the corresponding principle found in the psychologist-patient privilege. See Ala.R.Evid. 503(a)(2)(B).

Subsection (a)(2). Definition of “confidential.” The definition of this term is consistent with its use in the attorney-client privilege. See Ala.R.Evid. 502(a)(5). Whether a communication is “confidential” is largely determined by deciding whether the communicating person intended to create a confidential communication, i.e., one not to be communicated to unnecessary third parties. The communication must have been made with the express or implied understanding that it should not be revealed to another. Lucy v. State, 443 So.2d 1335 (Ala.Crim.App.1983). The presence of third parties whose presence is not necessary to the making of the communication indicates a lack of intent to communicate confidentially. The presence of a third party, however, does not destroy confidentiality if that third person is present to further the communication. No comparable provision exists in the preexisting statute creating Alabama’s clergyman privilege. Ala. Code 1975, § 12-21-166(b).

Section (b). General rule of privilege. The privilege arises only when the person communicates with a clergyman in the latter’s professional capacity. A similar limitation is placed upon the attorney-client privilege when the client consults a lawyer for some purpose other than to secure legal advice. See Ala.R.Evid. 502(a)(1) advisory committee’s notes. Communications to the clergyman in furtherance of a crime or a fraud would not qualify as seeking spiritual advice and therefore would not fall within the protection of the privilege. Compare Fed.R.Evid. 506(b) (not enacted) advisory committee’s note.

The statutory language providing Alabama’s preexisting clergyman privilege appears to limit the privilege to consultations with a clergyman that are either confessional or marital in nature. The committee thinks the role of the clergyman in modern society is much broader. Consequently, the committee proposed the language of Rule 505, in lieu of that found in the preexisting statute, so as to render the privilege applicable to all conferences where the clergyman is consulted in the professional capacity of spiritual advisor in the broadest sense.

The preexisting statute, upon which Rule 505 is based, protected “anything said by either party during such communication.” The phrase “confidential communication” is adopted in lieu of this language, but with the same broad coverage. Additionally, it is intended that the principle of Alabama’s preexisting case law will continue insofar as it takes an expansive view of “communication,” so that it may include statements made, acts that are synonymous with statements, and, in some instances, noncommunicative acts. See Ala.R.Evid. 504(b); Arnold v. State, 353 So.2d 524 (Ala.1977).

As with the corresponding rule in the attorney-client privilege, any person privy to the communication may be prevented from relating what was said, so long as the communication otherwise qualifies as a confidential, clergyman communication. Compare Ala.R.Evid. 502(b). This necessarily abrogates the common law “eavesdropper rule,” under which one who overheard an otherwise confidential communication – whether by eavesdropping or by accident – could relate what was overheard even if it was an otherwise fully privileged communication. Howton v. State, 391 So.2d 147 (Ala.Crim.App.1980). It should be noted that this abrogation of the eavesdropper rule goes beyond the preexisting, but now superseded, statutory privilege. The statute provided that the penitent or priest was privileged to preclude only “the other from disclosing.” Ala. Code 1975, § 12-21-166(b).

Section (c). Who may claim the privilege. As under the preexisting statute, the privilege belongs to, and may be asserted by, both the communicant and the clergyman. See Ala. Code 1975, § 12-21-166(b). In the majority of jurisdictions, in contrast, the clergyman may not assert the privilege in his or her own right. De’udy v. De’udy, 130 Misc. 168, 495 N.Y.S.2d 616 (N.Y.Sup.Ct.1985) (refusing to allow clergyman to assert the privilege, after waiver by communicant, but recognizing that some state statutes grant an independent privilege to the clergyman). Cf. E. Cleary, McCormick on Evidence § 73.1 (3d ed. 1984) (commenting that, in regard to privileges generally, persons other than the communicant may bring the existence of the privilege to the court’s attention but that normally this is regarded as having been done in behalf of the communicant or holder of the privilege).

The committee envisions that under Rule 505, as under the preexisting statute, the assertion of this privilege will be recognized broadly in a variety of trials, hearings, and proceedings of both a legal and a quasi-legal nature, including proceedings before an administrative agency of the state or a political subdivision thereof. See Ala. Code 1975, § 12-21-166(a)(2). The committee deemed it unnecessary to include an express provision to that effect in Rule 505, because all privileges are applicable in all proceedings. Ala.R.Evid. 1101(c).

Rule 506. Political vote.

(a)   General rule of privilege. Every person has a privilege to refuse to disclose the tenor of such person’s vote at a political election conducted by secret ballot.

(b)   Exceptions. This privilege does not apply if the vote was cast illegally or if disclosure is compellable pursuant to election laws.

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Section (a). General rule of privilege. Alabama has long recognized that the tenor of one’s vote, lawfully cast, is privileged from disclosure. Rule 506 is intended to continue that privilege unchanged. See Black v. Pate, 130 Ala. 514, 30 So. 434 (1901); C. Gamble, McElroy’s Alabama Evidence § 361.03 (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 5.8 (1990). The rule is based upon Unif.R.Evid. 506. The privilege applies only to votes cast in governmental elections.

Section (b). Exceptions. There are two exceptions to the privilege protecting the tenor of a secret ballot. (1) In all elections, the privacy of the vote may be invaded if it is shown that the vote was cast illegally. This principle is recognized under preexisting Alabama practice, by both statutory law and case law. See Ala. Code 1975, § 17-15-3 (a statute illustrating this principle as applied in general elections); Black v. Pate, 130 Ala. 514, 30 So. 434 (1901). Compare Ex parte Bullen, 236 Ala. 56, 181 So. 498 (1938). (2) Even without a showing of illegality, however, the disclosure of one’s vote may be rendered compellable by election laws. As of the date the committee proposed this rule for adoption, the only Alabama election law that compelled disclosure was the statute regarding the compellability of disclosure regarding a vote in a primary election when the vote is inquired about in the contest of a nomination. Ala. Code 1975, § 17-16-75.

Rule 507. Trade secrets.

A person has a privilege, which may be claimed by the person or the person’s agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. If disclosure is directed, the court shall take such protective measures as the interest of the holder of the privilege and of the parties and the interests of justice require.

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This rule is taken almost verbatim from Rule 507, Unif.R.Evid.507. Compare Fed.R.Evid. 508 (not enacted). A right to the protection given by this rule, albeit qualified, finds historic recognition nationally. See 8 J. Wigmore, Wigmore on Evidence § 2212(3) (McNaughton rev. 1961). The privilege belongs to the owner of the trade secret and may be claimed by the owner or the owner’s agent or employee.

While no trade secret privilege, assertable at trial, has been recognized under preexisting Alabama law, such a privilege is consistent with the policy found in other, related principles. See C. Gamble, McElroy’s Alabama Evidence § 361.02 (4th ed. 1991). First, it furthers the spirit of Alabama’s Trade Secrets Act, which calls for “injunctive and other equitable relief as may be appropriate with respect to any actual or threatened misappropriation of a trade secret.” Ala. Code 1975, § 8-27-4(1)(a). Additionally, it fosters the policy underlying the pretrial concept contained in Ala.R.Civ.P. 26(c). Under Rule 26(c), whenever knowledge of matters is sought by deposition, production, or inspection, the court may enter any order that will protect a party from:

“[A]nnoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: ... (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way....”

The purpose of Rule 507 is to extend the underlying policy of Ala.R.Civ.P. 26(c)(7) to the trial stage of litigation. Rule 507 does not affect or alter in any way the scope or procedure of discovery.

Discretion is vested in the court to disallow the privilege if nondisclosure of the trade secret would “tend to conceal fraud or otherwise work injustice.” Factors to be considered in deciding whether to require disclosure are “the dangers of abuse, good faith, adequacy of protective measures, and the availability of other means of proof.” Fed.R.Evid. 508 (not enacted) advisory committee’s note.

As with other privileges, the party asserting the trade secrets privilege has the burden of demonstrating that a bona fide trade secret exists and that the need to prevent disclosure outweighs the benefit of disclosing relevant evidence.

Even when disclosure is required, however, the court is charged to take such precautionary measures to protect the trade secret as are suggested by balancing the interests of the privilege holder, the parties, and justice. While the rule does not undertake to limit judicial ingenuity in fashioning protective measures, the drafters of the proposed, but never enacted, Federal Rule of Evidence 508 furnished a comprehensive summary of case law examples:

“Perhaps the most common is simply to take testimony in camera. Annot., 62 A.L.R.2d 509. Other possibilities include making disclosure to opposing counsel but not to his client, E. I. du Pont de Nemours Powder Co. v. Masland, 244 U.S. 100, 37 S.Ct. 575, 61 L.Ed. 1016 (1917); making disclosure only to the judge (hearing examiner), Segal Lock & Hardware Co. v. FTC, 143 F.2d 935 (2d Cir.1944); and placing those present under oath not to make disclosure, Paul v. Sinnott, 217 F.Supp. 84 (W.D.Pa.1963).” Fed.R.Evid. 508 (not enacted) advisory committee’s note.

Rule 508. Secrets of state and other official information: Governmental privileges.

(a)   Claim of privilege under federal law. If the United States creates a governmental privilege that the courts of this State must recognize under the Constitution of the United States, the privilege may be claimed as provided by the law of the United States.

(b)   Privileges recognized under state law. No other governmental privilege is recognized except as created by the Constitution or statutes of this State or rules promulgated by the Supreme Court of Alabama.

(c)   Effect of sustaining claim. If a claim of governmental privilege is sustained and it appears that a party is thereby deprived of material evidence, the court shall make any further orders the interests of justice require, such as striking the testimony of a witness, declaring a mistrial, making a finding upon an issue as to which the evidence is relevant, or dismissing the action.

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This rule is based upon the language found in the corresponding Uniform Rule of Evidence. See Unif.R.Evid. 508. Rather than undertaking to create a governmental privilege, this rule merely embraces those privileges that, under the law of the United States or the law of Alabama, already exist or may be created in the future.

Section (a). Claim of privilege under federal law. This section provides that a governmental privilege arising from federal case law or statute, and which as a matter of federal constitutional law must be enforced by the courts of Alabama, may be claimed in the state courts in the manner provided by federal law.

A number of governmental privileges have evolved at common law, either by case law alone or in conjunction with statutes. Sometimes these privileges are said to possess constitutional underpinnings, particularly as they relate to the separation of powers. No effort is made here to list or exhaustively catalog these federal privileges. Chief among them, however, is that applied for the protection of military or diplomatic secrets of state. United States v. Reynolds, 345 U.S. 1 (1953). See 8 J. Wigmore, Wigmore on Evidence § 2370 (McNaughton rev. 1961). While this particular privilege is an absolute one, others are qualified and may give way upon a showing of need for the information. The most celebrated, albeit the least frequently arising, of the qualified privileges is that commonly referred to as the “presidential privilege,” which establishes a cloak of protection for confidential communications between the President of the United States and the President’s immediate advisors. United States v. Nixon, 418 U.S. 683 (1974). See E. Cleary, McCormick on Evidence § 108 (3d ed. 1984). Additionally, an official information privilege has evolved to protect communications within and among governmental agencies. Pacific Molasses Co. v. NLRB, 577 F.2d 1172 (5th Cir.1978). See 5 U.S.C. § 552(b)(5) (1994) (section of Freedom of Information Act that exempts such communications from its coverage). Law enforcement investigation files likewise have been treated as carrying a qualified privilege. Black v. Sheraton Corp. of Am., 564 F.2d 531 (D.C.Cir.1977). See 5 U.S.C. § 552(b)(7) (1994) (exempting such files from the Freedom of Information Act). Compare 18 U.S.C. § 3500 (1988) (Jencks Act provision insulating prior statements or reports of Government witness in criminal case against subpoena, discovery, or inspection until the witness has testified on direct examination at the trial, but then entitling the defense to their production).

Section (b). Privileges recognized under state law. The only available governmental privileges, other than those existing under federal law, arise under the Alabama constitution, Alabama statutes, or rules promulgated by the Supreme Court of Alabama. Compare Ala.R.Evid. 501. While the Alabama constitution contains no express provision granting an executive privilege, it would be within the power of the courts to imply such a privilege from the separation of powers principle. See United States v. Nixon, 418 U.S. 683 (1974); N.D.R.Evid. 508(b) explanatory note. Alabama statutes create privileges that may be categorized as governmental. These statutes are not affected by adoption of Rule 508. See, e.g., Ala. Code 1975, § 22-11A-15 (calling for the exclusion from evidence, because of confidentiality, of physician reports to the state board of health concerning persons with sexually transmitted diseases); Ala. Code 1975, § 32-10-11 (giving privilege status to reports required to be filed concerning automobile accidents); Ala. Code 1975, § 40-18-52 (income tax returns as privileged).

Section (c). Effect of sustaining claim. Whenever a claim of governmental privilege is sustained, so that a litigant is deprived of what would otherwise constitute admissible evidence, the court may order such relief for that litigant as is required by the interests of justice. Devices the court may use for this purpose include striking a witness’s testimony, declaring a mistrial, making a determination, as a matter of law, as to the issue upon which the evidence is relevant, or dismissing the action altogether. This list of available devices is not exhaustive, but merely illustrative. These measures will most often be taken in those cases where a governmental entity that holds and asserts the privilege is a party to the litigation. As expressed in the following passage taken from the advisory committee’s note to the rejected Federal Rule of Evidence 509, the particular order issued by the court depends upon the nature of the case and the prejudice to a party that may be caused by the exclusion of the evidence:

“Reference to other types of cases serves to illustrate the variety of situations which may arise and the impossibility of evolving a single formula to be applied automatically to all of them. The privileged materials may be the statement of ]a[ government witness, as under the Jencks statute, which provides that, if the government elects not to produce the statement, the judge is to strike the testimony of the witness, or that he may declare a mistrial if the interests of justice so require. 18 U.S.C. § 3500(d). Or the privileged materials may disclose a possible basis for applying pressure upon witnesses. United States v. Beekman, 155 F.2d 580 (2d Cir.1946). Or they may bear directly upon a substantive element of a criminal case, requiring dismissal in the event of a successful claim of privilege. United States v. Andolschek, 142 F.2d 503 (2d Cir.1944); and see United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). Or they may relate to an element of a plaintiff’s claim against the government, with the decisions indicating unwillingness to allow the government’s claim of privilege for secrets of state to be used as an offensive weapon against it. United States v. Reynolds, supra; Republic of China v. National Union Fire Ins. Co., 142 F.Supp. 551 (D.Md.1956).”

Rule 509. Identity of informer.

(a)   Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished to a law enforcement officer information relating to or assisting in an investigation of a possible violation of a law.

(b)   Who may claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished or the public entity bringing the prosecution.

(c)   Exceptions.

(1)   VOLUNTARY DISCLOSURE;INFORMER AS A WITNESS. No privilege exists under this rule if the identity of the informer or the informer’s interest in the subject matter of the communication has been disclosed, by a holder of the privilege or by the informer’s own action, to those who would have cause to resent the communication or if the informer appears as a witness for the prosecution.

(2)   TESTIMONY ON RELEVANT ISSUE. If it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case or to a fair determination of a material issue on the merits in a civil case, and the privilege has been invoked, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer’s identity, in criminal cases the court on motion of the defendant, or on its own motion shall grant appropriate relief, which may include one or more of the following: requiring the prosecuting attorney to comply with an order to disclose the informer’s identity, granting the defendant additional time or a continuance, relieving the defendant from making disclosures otherwise required, prohibiting the prosecuting attorney from introducing specified evidence, or dismissing charges. In fashioning appropriate relief in civil cases, the court may make any order the interests of justice require. Evidence submitted to the court shall be sealed and preserved, to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity asserting the privilege. During any in camera showing, for the purpose of determining the applicability of the present privilege, no party should be present but, in its discretion, the court may allow counsel for any party and counsel for the public entity to be present.

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Section (a). Rule of privilege. The language of this rule is substantially the same as that found in Unif.R.Evid. 509. It continues that historic governmental privilege protecting the identity of one who furnishes to the government information that is related to or that assists in investigations regarding violations of law. See E. Cleary, McCormick on Evidence § 111 (3d ed. 1984). Such a privilege has long existed under preexisting Alabama law. Pugh v. State, 493 So.2d 388 (Ala.Crim.App. 1985), aff’d, 493 So.2d 393 (Ala.1986); C. Gamble, McElroy’s Alabama Evidence § 408.01 (4th ed. 1991). While customarily asserted in the context of a criminal proceeding, the Rule 509 privilege is not limited to criminal cases. It may be asserted in civil cases. This application of the privilege in civil cases goes beyond preexisting Alabama authority. Compare White v. State, 368 So.2d 332 (Ala.Crim.App.1979). Consistent with historic precedent, this privilege applies only to the identity of the informer. The communication does not fall within the privilege unless its disclosure would have the incidental effect of identifying the informer. See Pugh v. State, 493 So.2d 388 (Ala.Crim.App.1985), aff’d, 495 So.2d 393 (Ala.1986); 8 J. Wigmore, Wigmore on Evidence § 2374 (McNaughton rev. 1961).

The drafters thought it unnecessary to extend this privilege to legislative investigations; thus, in that regard this rule is different from Unif.R.Evid. 509.

Section (b). Who may claim. While this privilege is often referred to as the “informer’s privilege,” the holder of this privilege is either the governmental entity to which the informer furnished the information or the public entity bringing the prosecution. An appropriate representative of such an entity may claim the privilege in its behalf. Normally, the appropriate representative is counsel for the entity. See Fed.R.Evid. 501 (original proposal, not enacted) advisory committee’s note. Others, however, may be deemed appropriate to assert the privilege, particularly in proceedings to which the governmental entity is not a party. See Bocchicchio v. Curtis Publishing Co., 203 F.Supp. 403 (E.D.Pa.1962) (civil libel action in which the police officer, not represented by counsel, successfully claimed the privilege).

Section (c). Exceptions.

(1)   Voluntary disclosure; informer as a witness. The informer’s privilege falls where the informer’s identity has been disclosed. Disclosure may be direct or may arise indirectly when the informer’s interest in the subject matter of the information furnished to the law enforcement officer becomes known. See Westinghouse Elec. Corp. v. City of Burlington, 351 F.2d 762 (D.C.Cir.1965), on remand, 246 F.Supp. 839 (D.D.C.1965) (informer’s privilege held inapplicable, with regard to complaints of criminal antitrust violations made to the attorney general, after plaintiff/informer filed civil antitrust action).

The informer’s privilege falls, however, only if disclosure is made to “those who would have cause to resent the communication.” The idea underlying this principle is that, if the informer’s identity has already been disclosed to those who would resent the informer’s action, there is no need for the privilege. The language “resent the communication” is taken from Roviaro v. United States, 353 U.S. 53 (1957), and has been quoted approvingly by the Supreme Court of Alabama. Pugh v. State, 493 So.2d 388 (Ala.Crim.App.1985), aff’d, 493 So.2d 393, 395 (Ala.1986). Those as to whom a disclosure will abrogate the privilege may include the defense or persons in the community. See United States v. Long, 533 F.2d 505 (9th Cir.), cert. denied, 429 U.S. 829 (1976). Disclosure by one law enforcement agency to another does not abrogate the privilege. See E. Cleary, McCormick on Evidence § 111 (3d ed. 1984).

The privilege may be waived when the holder of it discloses the informer’s identity, i.e., when an agent of the governmental entity holding the privilege discloses the informer’s identity. Additionally, however, this rule recognizes a waiver when the informer discloses his or her own identity. Compare Fed.R.Evid. 510 (not enacted).

When the government calls the informer as a witness, the cross-examining party’s right to show the informer’s status, as indicating bias, outweighs the interest promoted by assertion of the privilege. See Harris v. United States, 371 F.2d 365 (9th Cir. 1967).

(2)   Testimony on relevant issue. The Rule 509 privilege aims at promoting the free flow of information to governmental law enforcement officers. This policy, however, may be held to give way, under the present exception, to an overriding policy of fundamental fairness in allowing litigants to prove their cases via access to material and relevant information.

The privilege falls where the identity of the informer, or what was communicated by the informer, is relevant and helpful to the defense of the criminally accused. Roviaro v. United States, 353 U.S. 53 (1957). In this circumstance, the governmental interest in the free flow of information is deemed to be outweighed by the accused’s right to prove innocence. This exception has received historic recognition in Alabama. Pugh v. State, 493 So.2d 388 (Ala.Crim.App.1985), aff’d, 493 So.2d 393 (Ala.1986). Rule 509 extends this balancing process to civil cases and directs the court’s focus to whether there exists a reasonable probability that the informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case. In determining whether that probability exists, the court is to investigate the facts in camera. Should the privilege continue to be asserted, in face of the court’s finding that the informer is able to give necessary testimony, the court is to afford appropriate relief. Subsection (c)(2) provides a list of possible measures, satisfying the requirement of “appropriate relief,” for application in criminal cases. Possible relief in civil litigation is of such breadth that no specification is attempted.

Rule 510. Waiver of privilege by voluntary disclosure.

(a)   Generally. A person upon whom these rules confer a privilege against disclosure waives the privilege if the person or the person’s predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.

(b)   Attorney-Client Privilege and Work Product; Limitations on Waiver. Notwithstanding section (a) of this rule, the following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(1)   DISCLOSURE MADE IN AN ALABAMA PROCEEDING; SCOPE OF WAIVER. When the disclosure is made in an Alabama proceeding and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in an Alabama proceeding only if:

(A)   the waiver is intentional;

(B)   the disclosed and undisclosed communications or information concern the same subject matter; and

(C)   the disclosed and undisclosed communications or information should, in fairness, be considered together.

(2)   INADVERTENT DISCLOSURE. When made in an Alabama proceeding, the disclosure does not operate as a waiver in an Alabama proceeding if:

(A)   the disclosure is inadvertent;

(B)   the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(C)   the holder promptly took reasonable steps to rectify the error, including (if applicable) following the procedure set out in Alabama Rule of Civil Procedure 26(b)(6)(B).

(3)   DISCLOSURE MADE IN A PROCEEDING IN FEDERAL COURT OR IN ANOTHER STATE. When the disclosure is made in a proceeding in federal court or in another state and is not the subject of a court order concerning waiver, the disclosure does not operate as a waiver in an Alabama proceeding if the disclosure:

(A)   would not be a waiver under this rule if it had been made in an Alabama proceeding; or

(B)   is not a waiver under the law governing the federal or state proceeding in which the disclosure occurred.

(4)   CONTROLLING EFFECT OF A COURT ORDER. An Alabama court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other Alabama proceeding.

(5)   CONTROLLING EFFECT OF A PARTY AGREEMENT. An agreement on the effect of disclosure in an Alabama proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(6)   DEFINITIONS. In this rule:

(A)   “Attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and

(B)   “Work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.

[Amended 8-15-2013, eff. 10-1-2013.]

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This rule, stated substantially in the language of the corresponding Uniform Rule of Evidence, sets forth in express terms what is to be implied from the statement of all privileges – i.e., the privilege falls when that which is protected by the privilege is voluntarily disclosed by the holder. See Unif.R.Evid. 510. Such a waiver may occur, for example, when the holder allows an unnecessary third party to be privy to an otherwise privileged communication. Additionally, it may arise when the holder tells a third party about the privileged matter. See, e.g., Perry v. State, 280 Ark. 36, 655 S.W.2d 380 (1983) (clergyman privilege waived by disclosure of inculpatory statements to others); State v. Jackson, 97 N.M. 467, 641 P.2d 498 (1982). This waiver doctrine is consistent with preexisting Alabama law. See Ex parte Great Am. Surplus Lines Ins. Co., 540 So.2d 1357 (Ala.1989) (attorney-client privilege); Swoope v. State, 115 Ala. 40, 22 So. 479 (1897) (husband-wife privilege); C. Gamble, McElroy’s Alabama Evidence §§ 394.01 (waiver of attorney-client privilege), and 103.01(4) (husband-wife privilege) (4th ed. 1991).

The waiver doctrine has two significant limitations. First, waiver arises only when the holder has disclosed, or allowed disclosure of, the “privileged matter.” The client does not waive the attorney-client privilege, for example, by disclosing the subject discussed without revealing the substance of the discussion itself. See Fed.R.Evid. 511 (not enacted) advisory committee’s note; E. Cleary, McCormick on Evidence § 93 (3d ed. 1984). Even if the holder discloses a portion of the privileged matter, however, the second limitation is that the disclosure must be of a “significant part” of it. Disclosure of an insignificant part of the privileged matter does not waive the privilege. Whether a significant part of the privileged matter has been disclosed is a common sense question for the judge. See N.D.R.Evid. 510 explanatory note. It should be observed, of course, that the holder need not disclose every detail of the privileged matter in order to waive the privilege. See Or.R.Evid. 511 legislative commentary. No waiver occurs if the disclosure, even of a significant part of the privileged matter, is made in the course of another privileged communication. Perry v. State, 280 Ark. 36, 655 S.W.2d 380 (1983).

The concept of fairness underlies the waiver doctrine. It has been held unfair to permit offensive assertion of a privilege. When a party, for example, offers a portion of the privileged matter in proof of his or her case, fairness dictates that the opponent be allowed to offer or discover the remainder. Ginsberg v. Fifth Court of Appeals, 686 S.W.2d 105 (Tex. 1985). This is consistent with preexisting Alabama law under which the attorney-client privilege falls when a plaintiff client puts the attorney-client communications at issue or charges the attorney with misconduct. Ex parte Malone Freight Lines, Inc., 492 So.2d 1301 (Ala.1986); Dewberry v. Bank of Standing Rock, 227 Ala. 484, 150 So. 463 (1933).

Advisory Committee’s Notes to Amendment to Rule 510 Effective October 1, 2013

Rule 510 has been amended to establish a standard for determining whether inadvertent disclosure in an Alabama proceeding of matter otherwise protected by the attorney-client privilege or the work-product doctrine results in waiver of the privilege or protection. This amendment is to be read consistent with revisions made to the Alabama Rules of Civil Procedure in 2010 to accommodate the discovery of electronically stored information (ESI).

The amendment is also intended to align Alabama law with Federal Rule of Evidence 502 and to provide predictable, uniform standards whereby parties can protect against waiver of the privilege or protection in an Alabama proceeding. All substantive changes to Rule 510 are found in a new section (b), which is modeled on Federal Rule 502.

Section (a). Generally. No changes have been made to the original paragraph of Rule 510, which is now designated as Rule 510(a). Rule 510(a) governs the consequences of voluntary disclosure of privileged matter generally, in circumstances not covered by Rule 510(b).

Section (b). Attorney-Client Privilege and Work Product; Limitations on Waiver. Rule 510(b) addresses only the effect of disclosure, in an Alabama proceeding, of information otherwise protected by the attorney-client privilege or the work-product doctrine and whether the disclosure itself operates as a waiver of the privilege or protection for purposes of admissibility. The failure to address in Rule 510(b) other waiver issues or other privileges or protections is not intended to affect the law regarding those other waiver issues, privileges, or protections. The amendment does not alter existing Alabama law for determining whether a communication or information qualifies for protection under the attorney-client privilege or the work-product doctrine in the first instance.

Subsection (b)(1). Disclosure Made in an Alabama Proceeding; Scope of Waiver. Rule 510(b)(1) adopts the standard set forth in Federal Rule 502(a). The advisory committee’s notes accompanying Federal Rule 502(a) provide a clear description of this standard.

”[A] subject matter waiver (of either privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary. See, e.g., In re United Mine Workers of America Employee Benefit Plans Litig., 159 F.R.D. 307, 312 (D.D.C. 1994) (waiver of work product limited to materials actually disclosed, because the party did not deliberately disclose documents in an attempt to gain a tactical advantage). Thus, subject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner. It follows that an inadvertent disclosure of protected information can never result in a subject matter waiver.”

Fed. R. Evid. 502(a) (Advisory Committee’s Notes).

Subsection (b)(2). Inadvertent Disclosure. Subsection (b)(2) fills a gap in Alabama law regarding the proper standard for determining whether an inadvertent disclosure of matter protected by the attorney-client privilege or work-product doctrine during discovery results in waiver of the privilege or protection. See Koch Foods of Alabama LLC v. Gen. Elec. Capital Corp., 531 F. Supp. 2d 1318, 1320-21 (M.D. Ala. 2008) (observing that courts have used three standards for determining whether an inadvertent waiver has occurred but that ”Alabama law does not fall neatly into any of these categories”). See also Ala. R. Civ. P. 26(b)(6)(B) (Committee Comments to 2010 Amendment) (2010 amendment ”provides a procedure to assert a claim of attorney-client privilege or work-product protection after production [that is] applicable to both non-ESI and ESI data, but [the change] is procedural and does not address substantive waiver law”).

The substantive standard set forth in this subsection is intended to apply in the absence of a court order or a party agreement regarding the effect of disclosure. In determining whether waiver has occurred, court orders and party agreements should ordinarily control. Cf. Ala. R. Civ. P. 16(b)(6) (Committee Comments to 2010 Amendment) (”subdivision (b)(6) allows the parties to agree (and the court to adopt their agreement as its order) concerning nonwaiver of any claim of privilege or work-product protection in the event such materials are inadvertently produced”).

Alabama Rule 510(b)(2) adopts verbatim the three-part standard set out in Federal Rule 502(b). Under this standard, disclosure does not operate as a waiver if: (1) the disclosure was inadvertent, (2) the holder took reasonable steps to prevent disclosure, and (3) the holder took prompt and reasonable steps to rectify the error including (if applicable) providing the notice and following the other steps set forth in Rule 26(b)(6)(B) of the Alabama Rules of Civil Procedure.

The standard adopted is intended to be flexible. Accordingly, no attempt is made to define “reasonable steps” or to list factors that must be considered in every case. Guidance for applying this standard can be found in the advisory committee’s notes accompanying Federal Rule 502(b), which provide:

”Cases such as Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985) and Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 332 (N.D. Cal. 1985), set out a multifactor test for determining whether inadvertent disclosure is a waiver. The stated factors (none of which is dispositive) are the reasonableness of precautions taken, the time taken to rectify the error, the scope of discovery, the extent of disclosure and the overriding issue of fairness. The rule does not explicitly codify that test, because it is really a set of non-determinative guidelines that vary from case to case. The rule is flexible enough to accommodate any of those listed factors. Other considerations bearing on the reasonableness of a producing party’s efforts include the number of documents to be reviewed and the time constraints for production. Depending on the circumstances, a party that uses advanced analytical software applications and linguistic tools in screening for privilege and work product may be found to have taken ’reasonable steps’ to prevent inadvertent disclosure. The implementation of an efficient system of records management before litigation may also be relevant.

”The rule does not require the producing party to engage in a post-production review to determine whether any protected communication or information has been produced by mistake. But the rule does require the producing party to follow up on any obvious indications that a protected communication or information has been produced inadvertently.”

Fed. R. Evid. 502(b) (Advisory Committee’s Notes).

Subsection (b)(3). Disclosure Made in a Proceeding in Federal Court or in Another State. Alabama Rule 510(b)(3) corresponds to Federal Rule 502(c) and addresses the situation where the initial disclosure occurred in a proceeding in federal court or in another state’s court and the disclosed matter is subsequently offered in an Alabama proceeding. Rule 510(b)(3) provides that, in the absence of a court order, the disclosure will not operate as a waiver in an Alabama proceeding if: (1) the disclosure would not have resulted in a waiver in an Alabama proceeding by application of Ala. R. Evid. 510(b), or (2) if the disclosure would not have resulted in waiver under the law applicable to the federal or state proceeding in which it occurred. Stated differently, the law that is the most protective of privilege and work-product should be applied.

Subsection (b)(4). Controlling Effect of a Court Order. Alabama Rule 510(b)(4) corresponds to Federal Rule 502(d). Under Rule 510(b)(4), a confidentiality order governing the consequences of disclosure entered in an Alabama proceeding is enforceable against nonparties in a subsequent Alabama proceeding. Rule 510(b)(4), like its federal counterpart, is intended to provide predictability and reduce discovery costs. See Fed. R. Evid. 502(d) (Advisory Committee’s Notes) (”[T]he utility of a confidentiality order in reducing discovery costs is substantially diminished if it provides no protection outside the particular litigation in which the order is entered. Parties are unlikely to be able to reduce the costs of pre-production review for privilege and work product if the consequence of disclosure is that the communications or information could be used by non-parties to the litigation.”). Cf. Ala. R. Civ. P. 16(b)(6) (party agreements for asserting claims of privilege or work-product protection after production may be included in court’s scheduling order); Ala. R. Civ. P. 26(f) (party agreements for asserting claims of privilege or work-product protection after production may be included in court’s discovery-conference order).

Subsection (b)(5). Controlling Effect of a Party Agreement. Alabama Rule 510(b)(5) corresponds to Federal Rule 502(e) and recognizes that parties may enter into agreements concerning the effect of disclosure of privileged or protected materials in an Alabama proceeding. However, such an agreement is binding only on the parties unless it is incorporated into a court order as provided in Rule 510(b)(4).

Subsection (b)(6). Definitions. Alabama Rule 510(b)(6) adopts verbatim the definitions for “attorney-client privilege” and “work-product protection” contained in Federal Rule 502(g). The definitions are general. No substantive change in existing Alabama law is intended. Cf. Ala. R. Evid. 502(a) (attorney-client privilege); Ala. R. Civ. P. 26(b)(4) (trial-preparation materials).

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 511. Privileged matter disclosed under compulsion or without opportunity to claim privilege.

A claim of privilege is not defeated by a disclosure which was (a) compelled erroneously or (b) made without opportunity to claim the privilege.

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Rule 510 provides that a disclosure ordinarily waives a privilege. However, Rule 511 establishes a corollary, that not every disclosure constitutes a waiver. The language of Rule 511 is taken from Unif.R.Evid. 511.

Part (a). Erroneously compelled disclosure. A disclosure that is compelled erroneously does not prevent the holder from subsequently asserting the privilege. The remedy for an erroneously compelled disclosure is for the court to exclude from the evidence the information erroneously compelled. There is no requirement, as a condition precedent to reasserting the privilege, that the holder have exhausted all remedies with regard to the erroneously compelled disclosure. The omission of such a requirement is perhaps best expressed by the drafters of the identical, but not enacted, federal rule:

“With respect to erroneously compelled disclosure, the argument may be made that the holder should be required in the first instance to assert the privilege, stand his ground, refuse to answer, perhaps incur a judgment of contempt, and exhaust all legal recourse, in order to sustain his privilege. However, this exacts of the holder greater fortitude in the face of authority than ordinary individuals are likely to possess, and assumes unrealistically that a judicial remedy is always available.” Fed.R.Evid. 512 (not enacted) advisory committee’s note (citation omitted).

Part (b). Disclosure without opportunity to claim the privilege. A second basis for an exception to the waiver concept arises when disclosure is made under circumstances in which the holder has no opportunity to assert the privilege. Such circumstances would be present, for example, if an employee of an attorney (expressly included within the attorney-client privilege as a third party whose presence does not destroy confidentiality) discloses the privileged matter in a setting where neither the attorney nor the client is present. See Ala.R.Evid. 502(4). Such disclosure could arise when a member of a patient’s family, who participated in the consultation, divulges, out of the presence of the patient or the patient’s attorney, confidential communications between the patient and a psychotherapist. See Ala.R.Evid. 503. Additionally, circumstances justifying exclusion would exist where a question calling for privileged information is asked and is answered in such rapid succession that the holder has an inadequate opportunity to object.

Rule 512. Comment upon or inference from claim of privilege in criminal cases; instruction.

(a)   Comment or inference not permitted. In a criminal case, the claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.

(b)   Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

(c)   Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.

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Section (a). Comment or inference not permitted. A long held constitutional principle has been that of the accused’s right to prevent the prosecution from commenting upon the accused’s failure to take the witness stand based on the assertion of the privilege against self-incrimination. See Griffin v. California, 380 U.S. 609 (1965); Dobard v. State, 435 So.2d 1338 (Ala.Crim.App. 1982), aff’d, 435 So.2d 1351 (Ala.1983), cert. denied, 464 U.S. 1063 (1984); C. Gamble, McElroy’s Alabama Evidence § 377.01 (4th ed. 1991). Rule 512, containing language similar to that found in the corresponding Uniform Rule of Evidence, extends this no-comment principle to privileges that are not of constitutional origin. See Unif.R.Evid. 512. One should note, however, that Ala.R.Evid. 512A creates a special rule applicable to comment upon a civil party’s assertion of a privilege.

Section (b). Claiming privilege without knowledge of jury. Often, a witness is called to the stand and asked a question, a privilege is asserted, and, after an exchange, is not required to answer – all within the hearing of the jury. Rule 512 calls upon the trial judge, insofar as is practicable, to avoid such a situation and to conduct proceedings so that privileges may be claimed without the knowledge of the jury. Many privilege questions will appear in advance, and the trial judge is encouraged to foresee these questions and to facilitate the assertion of the privilege by addressing the question outside the hearing of the jury. Obviously, not all privilege questions will be anticipated; consequently, much must be left to the discretion of the trial judge.

This rule is consistent with preexisting Alabama authority, which gives the trial judge discretion to require that offers of evidence and arguments as to admissibility be made outside the hearing of the jury. See Shiflett v. State, 38 Ala.App. 662, 93 So.2d 523 (1956), cert. denied, 265 Ala. 652, 93 So.2d 526 (1957). Additionally, Alabama motion in limine practice affords the privilege holder a pretrial tactic through which to avoid being forced to claim the privilege before the jury. See C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1 (1981).

Section (c). Jury instruction. As a matter of right, the holder of the privilege may have the trial court instruct the jury against drawing any negative inference from the assertion of a privilege. See Bruno v. United States, 308 U.S. 287 (1939). Neither the rule nor these comments address the effectiveness of such an instruction. That issue, and whether to ask for the instruction, are tactical questions for the privilege holder. This rule is consistent with appellate decisions in Alabama that have increasingly extolled the virtues of instructing juries as to their role arising from certain evidentiary rulings. See Cups Coal Co. v. Tennessee River Pulp & Paper Co., 519 So.2d 932 (Ala.1988).

Rule 512A. Comment upon or inference from claim of privilege in civil cases.

(a)   Comment or inference permitted. In a civil action or proceeding, a party’s claim of a privilege, whether in the present action or proceeding or upon a prior occasion, is a proper subject of comment by judge or counsel. An appropriate inference may be drawn from the claim.

(b)   Claim of privilege by nonparty witness. The claim of a privilege by a nonparty witness in a civil action or proceeding is governed by the same principles that are applicable to criminal cases by virtue of Rule 512.

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Section (a). Comment or inference permitted. This rule continues Alabama’s historic principle that a civil party’s assertion of a privilege, such as that against self-incrimination, may be commented upon by the opponent and that the trier of fact may consider the assertion of the privilege and draw from it inferences against the party asserting it. Cokely v. Cokely, 469 So.2d 635 (Ala.Civ.App.1985) (divorce action in which spouse asserts privilege against self-incrimination when asked questions aimed at disclosing acts of adultery). A comment on the assertion of the privilege likewise is permissible when a party in a civil action or proceeding fails to take the witness stand altogether. Trahan v. Cook, 288 Ala. 704, 265 So.2d 125 (1972). See also Morris v. McClellan, 154 Ala. 639, 45 So. 641 (1908) (containing basic rationale for allowing such a comment).

The committee recognizes that a number of states have adopted rules of evidence that preclude such comment. See, e.g., Ark.R.Evid. 512; Idaho R.Evid. 512; Neb. Rev. Stat. § 27-513; Vt.R.Evid. 512. At the same time, however, such comment has been held constitutional and is regularly permitted in federal courts. See, e.g., Lefkowitz v. Cunningham, 431 U.S. 801 (1977); Baxter v. Palmigiano, 425 U.S. 308 (1976). Compare Me.R.Evid. 513.

If in a civil action or proceeding comment is permissible as to the assertion of the privilege against self-incrimination, a constitutionally based privilege, then it seems reasonable to allow like comment when a party in a civil proceeding asserts any other evidentiary privilege.

Section (b). Claim of privilege by nonparty witness. If a nonparty witness takes the stand and asserts a privilege, then comment or inference against a party is not permitted. This appears consistent with preexisting Alabama authority. See Breedwell v. State, 38 Ala.App. 620, 90 So.2d 845 (1956); C. Gamble, McElroy’s Alabama Evidence § 377.04 (4th ed. 1991).

Rule 601. General rule of competency.

Every person is competent to be a witness except as otherwise provided in these rules.

Advisory Committee’s Notes, as Amended February 3, 1998

The starting point for applying Rule 601 is that all witnesses are competent except as otherwise provided under other Alabama Rules of Evidence. This rule is identical to Unif.R.Evid. 601 and to the first sentence of the corresponding Federal Rule of Evidence. It acknowledges the prevailing sentiment that very few persons are incapable of giving testimony useful to the trier of fact and that historic grounds of incompetency – mental incapacity, conviction, etc. – should go to the credibility of the witness and the weight the trier of fact gives to the witness’s testimony. See H. Weihofen, Testimonial Competence and Credibility, 34 Geo.Wash.L.Rev. 53 (1965); E. Cleary, McCormick on Evidence § 71 (3d ed. 1984) (referring to rules of incompetency as “serious obstructions to the ascertainment of truth”); C. Mueller & L. Kirkpatrick, 3 Federal Evidence § 232 (2d ed. 1994); Comment, The Mentally Deficient Witness: The Death of Incompetency, 14 Law & Psychol. Rev. 106 (1990).

This move away from grounds of absolute incompetency is consistent with developments in Alabama practice over the past several decades. Spouses, once declared incompetent to be witnesses for or against each other, are now competent to take the witness stand but are not permitted, over objection, to divulge confidential husband-wife communications. See, e.g., Arnold v. State, 353 So.2d 527 (Ala.1977); Trammel v. United States, 445 U.S. 40 (1980) (holding that one spouse is competent to testify against the other in a criminal case but cannot be compelled to do so); Recent Decision, Privilege Regarding Non-confidential Marital Testimony Is Vested Only in Witness Spouse; Trammel v. United States, 11 Cumb.L.Rev. 465 (1980); Ala.Code 1975, § 12-21-227 (providing that the husband and wife may testify either for or against the other in criminal cases but shall not be compelled to do so). Those convicted of crimes involving moral turpitude, once rendered absolutely incompetent, are now permitted to take the witness stand, with their convictions going to credibility rather than competency. See Ala.Code 1975, § 12-21-162(b) (providing that one is no longer rendered incompetent by reason of a conviction for a crime involving moral turpitude; however, the conviction may be a ground of impeachment); Rowe v. State, 522 So.2d 328 (Ala.Crim.App.1988).

This rule supersedes any inconsistent statutory grounds of incompetency. Chief among these is Alabama’s Dead Man’s Statute. Ala.Code 1976, § 12-21-163. Superseding the Dead Man’s Statute means that survivors will be allowed to testify, if their testimony otherwise complies with the rules of evidence, and that the unavailability of the deceased person will be merely a factor for the jury to consider in determining the weight to give the survivor’s testimony. See Beddingfield v. Central Bank of Alabama, N.A., 440 So.2d 1051, 1052 (Ala.1983) (recognizing the significant body of scholarly criticism of the Dead Man’s Statute). In superseding the Dead Man’s Statute, Alabama follows the lead of such states as Alaska, Arkansas, Delaware, Hawaii, Iowa, Maine, Michigan, Mississippi, Minnesota, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, and Utah. See J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 601[03] (1990). See also 2 J. Wigmore, Wigmore on Evidence § 578 (Chadbourn rev. 1979) (recognizing that the Dead Man’s Statute is a survival from an earlier and much broader incompetency statute and characterizing its survival as “deplorable”); M. Ladd, Uniform Rules of Evidence–Witnesses, 523, 526 (1956) (characterizing the elimination of the Dead Man’s Statute as one of the first steps in improving the law of evidence).

No longer, after the adoption of Rule 601, will a witness necessarily be incompetent because the witness is an idiot or a lunatic during lunacy. See Ala.Code 1975, § 12-21-165(a); J. Weinstein & M. Berger, Weinstein’s Evidence Rule 601 (1990). Compare C. Gamble, McElroy’s Alabama Evidence § 94.01 (4th ed. 1991).

Rule 601 supersedes the historic statutory rule of incompetency applied to any witness who has been convicted of perjury or subornation of perjury. See Ala.Code 1975, § 12-21-162(a).

While Rule 601 imposes no requirement of testimonial competency, it provides that incompetency may arise “as otherwise provided in these rules.” Both academic writings and judicial opinions suggest that this provision vests in the trial court the discretion to preclude a witness from testifying in extraordinary circumstances when the witness possesses some significant testimonial deficiency. That discretion is said to arise when the witness’s deficiency renders the testimony inadmissible because of its being irrelevant (Rule 401) or non-prejudicial (Rule 403), or when the witness is without personal knowledge (Rule 602) or is unable to understand the obligation to tell the truth (Rule 603). See, e.g., United States v. Ramirez, 871 F.2d 582 (6th Cir.), cert. denied, 493 U.S. 841 (1989); United States v. Odum, 736 F.2d 104 (4th Cir.1984); United States v. Lightly, 677 F.2d 1027 (4th Cir.1982); State v. Fulton, 742 P.2d 1208 (Utah 1987), cert. denied, 484 U.S. 1044 (1988). See also J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 601[04], at 601-27 (1990). It should be noted, however, that the suggestion of these authorities exceeds their reality in terms of witnesses actually excluded by the courts. Indeed, as one author has observed, an analysis of the decided cases reveals that the application of Rule 601 is “closer to an irrebuttable presumption of competency for every witness.” Comment, The Mentally Deficient Witness: The beginning premise remains: all witnesses are competent and any testimonial deficiency goes to weight rather than admissibility. See F. Weissenberger, Weissenberger’s Federal Evidence § 252 (1979). Compare United States v. Van Meerbeke, 548 F.2d 415 (2d Cir.1976), cert. denied, 430 U.S. 974 (1977). This competency is to be accorded in all cases of child abuse, whether sexual or otherwise.

Rule 602. Lack of personal knowledge.

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’s own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

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This rule, unchanged from Fed.R.Evid. 602, embodies the traditional firsthand-knowledge requirement under which a witness is precluded from testifying to a matter about which the witness lacks a firsthand or personal knowledge of the facts. Before a witness may testify regarding a matter, a foundation must be established to indicate that the witness was in a position to observe and did observe those facts with which the testimony is concerned. See State Farm Mut. Auto. Ins. Co. v. Humphres, 293 Ala. 413, 304 So.2d 573 (1974); Gullatt v. State, 409 So.2d 466 (Ala.Crim.App.1981).

The phrase “sufficient to support a finding” is in no way intended to embrace a threshold standard different from that applied at common law for determining whether a witness possesses personal knowledge. Such a threshold standard will often be met via the witness’s own testimony reflecting what the witness thinks he or she knows from personal perception. Fed.R.Evid. 602 advisory committee’s note. See C. Gamble, McElroy’s Alabama Evidence § 105.01 (4th ed. 1991).

Nothing in Rule 602 prevents a witness, if authorized under Rule 801 et seq., from relating a hearsay statement. Rule 602 merely ensures that the witness relating it will have a firsthand knowledge of the making of the statement.

Rule 603. Oath or affirmation.

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.

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Rule 603, under which every witness must declare by oath or affirmation that he or she will testify truthfully, is the same as the corresponding federal rule. See Fed.R.Evid. 603. It supersedes the Alabama statute requiring the oath and affirmation as conditions precedent to giving testimony. Ala. Code 1975, § 12-21-135. Additionally, it supersedes Ala.R.Civ.P. 43(d), which provides that an affirmation may, at least in civil cases, always be given in lieu of an oath. As observed by the drafters of the federal rule: “The rule is designed to afford the flexibility required in dealing with religious adults, atheists, conscientious objectors, mental defectives, and children.” See Fed.R.Evid. 603 advisory committee’s note.

Alabama’s preexisting law regarding the determination of whether a witness understands the nature and obligation of an oath or affirmation continues. Clear federal authority stands for the proposition that it remains for the trial court to determine whether a prospective witness suffers under such an extreme mental deficiency as not to understand the duty to testify truthfully. See, e.g., United States v. Ramirez, 871 F.2d 582, 584 (6th Cir.), cert. denied, 493 U.S. 841 (1989) (recognizing that “under Rule 603, the inability of a witness to take or comprehend an oath or affirmation will allow the judge to exclude that person’s testimony”); United States v. Lightly, 677 F.2d 1027, 1028 (4th Cir.1982); United States v. Odum, 736 F.2d 104, 112 (4th Cir.1984). Compare C. Gamble, McElroy’s Alabama Evidence §§ 94.02, 94.03 (4th ed. 1991). Even Dean McCormick’s treatise contains this observation: “[A] defect of capacity could be so great that one could not understand the concept of truth-telling duties under Rule 603 or would not be capable of having firsthand knowledge under Rule 602.” E. Cleary, McCormick on Evidence § 45, at 104 n.5 (3d ed. 1984). While recognizing that a witness might be so mentally deficient as not to understand the taking of an oath or an affirmation under Rule 603, Judge Weinstein suggests that such a witness might more appropriately be kept off the stand upon the grounds of irrelevancy. J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 603[01] (1990).

Rule 604. Interpreters.

Interpreters are subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.

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Alabama has long recognized the role of interpreters in the courts. See Spencer v. State, 40 Ala.App. 93, 109 So.2d 756, cert. denied, 268 Ala. 699, 109 So.2d 758 (1959). See also C. Gamble, McElroy’s Alabama Evidence § 94.01(5) (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 6.4 (1990). Rule 604 continues the practice under which interpreters must make an oath or affirmation that they will interpret truly. Todd v. State, 380 So.2d 370 (Ala.Crim.App.1980); Ala. Code 1975, § 12-21-130 (Rule 604 supersedes that portion of the statute providing that interpreters may be sworn); Ala. Code 1975, § 12-21-131 (providing that presiding judge may provide an interpreter for witness with defective hearing). The interpreter must be qualified under the Alabama Rules of Evidence dealing with experts. See Ala.R.Evid. 702 (recognizing expertise as arising from experience as well as by education). This is consistent with preexisting Alabama practice. See, e.g., Almon v. State, 21 Ala.App. 466, 109 So. 371 (1926); Central of Ga. R.R. v. Joseph, 125 Ala. 313, 28 So. 35 (1900). See also Ala.R.Civ.P. 43(f) (recognizing that the court, at least in a civil case or proceeding may appoint an interpreter of its own selection and may fix a reasonable compensation for the interpreter and tax the compensation as costs).

Rule 604 is taken from Fed.R.Evid. 604.

Rule 605. Competency of judge as witness.

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

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Consistent with long-recognized Alabama authority, this rule makes a judge absolutely disqualified from testifying in the trial over which he or she is presiding. See Blackburn v. Tompkins, 46 Ala.App. 571, 246 So.2d 459 (1971); Estes v. Bridgforth, 114 Ala. 221, 21 So. 512 (1897); Dabney v. Mitchell, 66 Ala. 495 (1880). Ala.R.Evid. 605 is adopted without change from the corresponding federal rule. See Fed.R.Evid. 605.

Violation of this rule may be determined on appeal to constitute reversible error, without regard to whether an objection was made at the trial. A party has an “automatic” objection.

Rule 606. Competency of juror as witness.

(a)   At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b)   Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify in impeachment of the verdict or indictment as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. Nothing herein precludes a juror from testifying in support of a verdict or indictment.

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Section (a). At the trial. Like its counterpart under the Federal Rules of Evidence, this provision disqualifies a juror from taking the witness stand during the trial of the case in which he or she is sitting. While the opposing party must object to the calling of such a juror as a witness, an opportunity shall be provided for the objection to be made outside the jury’s presence. Rule 606(a) supersedes Ala. Code 1975, § 12-16-7 (insofar as it is interpreted as rendering jurors qualified to be witnesses during the trials in which they sit). Nothing in this rule is intended to relieve jurors of their duty to acknowledge and declare personal knowledge regarding any fact in controversy.

Section (b). Inquiry into validity of verdict or indictment. This rule leaves unchanged Alabama’s historic “anti-impeachment” rule. It precludes jurors, when called as witnesses to attack or impeach their own verdict or indictment but not when called to support their verdict or indictment, from testifying to (1) any matter or statement arising during the deliberations of the jury, (2) anything upon their or any juror’s mind or emotions that may have been influential in assenting to or dissenting from the verdict or indictment, or (3) their own mental processes through which they arrived at the verdict or indictment. Preexisting Alabama law has long embraced the general rule that a jury’s verdict may not be impeached by the testimony of the jurors regarding matters that transpired during the deliberations. See, e.g., Carpenter v. State, 400 So.2d 417 (Ala.Crim.App.), cert. denied, 400 So.2d 427 (Ala.1981); Fox v. State, 49 Ala.App. 204, 269 So.2d 917 (1972). Prohibited testimony includes testimony of the mental operations or mental processes of the jurors that caused them to agree or disagree with the verdict. Harrison v. Baker, 260 Ala. 488, 71 So.2d 284 (1954); Clemons v. State, 17 Ala.App. 533, 86 So. 177, cert. denied, 204 Ala. 697, 86 So. 926 (1920).

This juror-witness preclusion is not absolute. A juror may testify regarding (1) any extraneous, prejudicial information that was brought improperly to the attention of the jury or (2) any outside influence brought to bear upon any juror. This exception to the general rule of preclusion is consistent with preexisting Alabama law, under which jurors are permitted to testify regarding extraneous facts and influences. See, e.g., Nichols v. Seaboard Coastline Ry., 341 So.2d 671 (Ala.1977); Alabama Fuel & Iron Co. v. Rice, 187 Ala. 458, 65 So. 402 (1914).

Many federal courts have interpreted Fed.R.Evid. 606(b) to allow jurors to testify as to the purely objective facts about the extraneous information or outside influence, but not about how the information was or was not considered. That is, those courts have not allowed jurors to testify about whether or not the extraneous information or outside influence affected the verdict of any juror or the jury as a whole. In those courts the judge must decide, based only on the objective facts, whether probable prejudice occurred. See, e.g., 3 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 606[05] (1990); C. Mueller & L. Kirkpatrick, 3 Federal Evidence § 254 (2d ed. 1994); United States v. Howard, 506 F.2d 865 (5th Cir.1975). This rule is not intended as an adoption of the interpretation given by those federal courts. The committee intends this rule not to alter preexisting Alabama law on this issue, which is to the effect that jurors are not limited to testifying merely that extraneous information was brought before them but also may testify as to whether they were influenced by the extraneous information. Whitten v. Allstate Ins. Co., 447 So.2d 655 (Ala.1984). Of course, jurors’ testimony about the effect on them and their deliberations is not controlling; the trial judge may consider other factors in determining whether prejudice occurred. See United States v. Bollinger, 837 F.2d 436, 440 (11th Cir.1988).

A juror’s knowledge, as to the precluded matters, is equally inadmissible whether in the form of the juror’s own testimony, an affidavit, or evidence of the juror’s statements regarding the precluded matters. This is consistent with previously established Alabama law. Dumas v. Dumas Bros. Mfg. Co., 330 So.2d 426 (Ala.1976). See Ala.R.Civ.P. 59(c) (dealing with affidavits in support of a motion for new trial).

As expressed in the advisory committee’s note to Fed.R.Evid. 606(b): “The values sought to be promoted by excluding the evidence include freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment.” See McDonald v. Pless, 238 U.S. 264 (1915).

This rule deals only with the qualification of jurors to testify to the grounds for attacking jury verdicts; specification of those grounds is left to preexisting Alabama law. See Ala. Code 1975, § 12-13-11(a)(2) (establishing jury misconduct as a ground for granting a motion for new trial in a civil case); Ala. Code 1975, § 15-17-5(a)(2) (establishing jury misconduct as a ground for granting a motion for new trial in a criminal case).

Any juror testimony regarding a quotient verdict, falling within the exclusionary provision of Rule 606, would be inadmissible. See Fed.R.Evid. 606(b) advisory committee’s note; Ryan v. Arneson, 422 N.W.2d 491 (Iowa 1988); Sims’ Crane Serv. v. Ideal Steel Prods., Inc., 800 F.2d 1553 (11th Cir.1986); McDonald v. Pless, 238 U.S. 264 (1915). Once admissible evidence of a quotient verdict has been offered, however, the opposing party may call jurors to testify in support of the verdict. See Warner v. Elliot, 573 So.2d 275 (Ala.1990) (characterizing Fed.R.Evid. 606(b) as broader than the corresponding Alabama rule in that, under the former, juror testimony and affidavits are inadmissible if offered either to impeach or to support the verdict); Fortson v. Hester, 252 Ala. 143, 39 So.2d 649 (1949) (historic Alabama law precluding admission of juror testimony attacking verdict as by quotient but allowing juror testimony in support of the verdict as not having been by quotient). Compare Warner v. Elliot, 573 So.2d 275 (Ala.1990); C. Gamble, McElroy’s Alabama Evidence § 94.06(7) (4th ed. 1991). Pieces of paper or other material found in the jury room and upon which jurors have written numbers, offered as evidence of a quotient verdict, shall be admissible as under historic Alabama law.

Rule 606(b) applies to inquiries into the validity of indictments as well as verdicts from jury trials.

Rule 607. Who may impeach.

The credibility of a witness may be attacked by any party, including the party calling the witness.

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Historically, one calling a witness has been held to vouch for that witness’s credibility; consequently, the courts generally have refused to permit impeachment by the party calling the witness. Holloway v. Robertson, 500 So.2d 1056 (Ala.1986); Flournoy v. State, 270 Ala. 448, 120 So.2d 124 (1960). See C. Gamble, McElroy’s Alabama Evidence § 165.01(6) (4th ed. 1991); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 6-1 (1987). A trend away from this traditional “voucher rule” has been evidenced by rules or rulings dealing with exceptional situations in which the calling party has been permitted to impeach. One may, for example, call and impeach an adverse party. Ala.R.Civ.P. 43(b) (superseded by Rule 607). Additionally, any party may impeach any witness with that witness’s deposition. Ala.R.Civ.P. 32(a)(1) (superseded by Rule 607). This trend has been manifested on the criminal side by the judicial recognition of an adverse witness principle. See Anderton v. State, 390 So.2d 1083 (Ala.Crim.App.), cert. denied, 390 So.2d 1087 (Ala.1980); Wiggins v. State, 398 So.2d 780 (Ala.Crim.App.), cert. denied, 398 So.2d 783 (Ala.1981). See also C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 112 (1988); C. Gamble, C. Howard, & J. McElroy, The Turncoat or Chameleonic Witness: Use of His Prior Inconsistent Statement, 34 Ala.L.Rev. 1 (1983).

Rule 607, adopted verbatim from the corresponding Federal Rule of Evidence, abandons the voucher rule and is based upon the premise that a party regularly calls whichever witnesses are available and, consequently, does not vouch for their credibility or otherwise hold them out as worthy of belief. Rule 607 allows any party to impeach any witness.

Rule 608. Evidence of character and conduct of witness.

(a)   Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b)   Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence. They may, however, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

[Amended 8-15-2013, eff. 10-1-2013.]

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Alabama Rule of Evidence 404(a) establishes a general rule excluding character evidence when it is offered to prove that an individual is of a particular character and acted in conformity therewith on the occasion in question. A major exception to this general exclusionary rule permits the admission of specified character evidence when it goes to the credibility of witnesses. See Ala.R.Evid. 404(a)(3). Rules 607, 608, and 609 illustrate this exception. The Rule 404(a) provision generally excluding evidence of character, and the impeachment exception, are both consistent with traditional Alabama evidence law. See C. Gamble, Character Evidence: A Comprehensive Approach 56 (1987).

Section (a). Opinion and reputation evidence of character. As under preexisting Alabama law, a witness (referred to herein as the principal witness) may be impeached by the testimony of a character witness regarding the principal witness’s general reputation in the community for untruthfulness. Sussex Fire Ins. Co. v. Barton, 225 Ala. 570, 144 So. 439 (1932); Smitherman v. State, 521 So.2d 1050 (Ala.Crim.App.1987), cert. denied, 521 So.2d 1062 (Ala.1988). See C. Gamble, McElroy’s Alabama Evidence § 140.01 (4th ed. 1991). Rule 608 is in no way intended to affect Alabama case law regarding foundational issues, such as the evolving definition of “community,” the character witness’s prerequisite contacts with the community, and the principal witness’s contacts with the community. See, e.g., Baer & Co. v. Mobile Cooperage & Box Mfg. Co., 159 Ala. 491, 49 So. 92 (1909); Kilgore v. State, 124 Ala. 24, 27 So. 4 (1899). When reputation testimony is offered, it must relate only to truthfulness or untruthfulness. Alabama case law has long embraced the same concept. See Sweatt v. State, 156 Ala. 85, 47 So. 194 (1908); Dolan v. State, 81 Ala. 11, 1 So. 707 (1887). However, Rule 608(a) departs from the preexisting Alabama position in that it does not permit the character witness to testify to the principal witness’s general reputation as a whole; rather, reputation must be limited to the specific trait of truthfulness or untruthfulness. See Grammer v. State, 239 Ala. 633, 196 So. 268 (1940); Holloman v. State, 349 So.2d 131 (Ala.Crim.App.1977).

A second form of impeachment evidence authorized by Rule 608(a), through which the character witness may impeach the credibility of the principal witness, is the character witness’s opinion regarding the principal witness’s untruthfulness. Although Alabama courts historically permit the character witness to impeach the principal witness by offering opinion evidence through testimony as to whether the character witness would believe the principal witness under oath, this treatment of opinion evidence as equal with reputation evidence is new to Alabama. See Pitts v. State, 261 Ala. 314, 74 So.2d 232 (1954); Crawford v. State, 112 Ala. 1, 21 So. 214 (1896). When opinion evidence is used for impeachment, it must be confined to the trait of truthfulness or untruthfulness, and a foundation must be established to show that the character witness’s knowledge of the principal witness is sufficient to justify such an opinion. See Ala.R.Evid. 701(a); Ala.R.Evid. 602.

The same evidence as to reputation or opinion that Rule 608(a) authorizes for impeachment likewise may be admitted for rehabilitation of witnesses. That evidence, of course, must be limited to the specific trait of truthfulness. The recognition of these two mediums, through which one may rehabilitate witnesses, differs from prior Alabama law in two respects. First, preexisting Alabama authority recognized the admissibility of the character witness’s opinion that he or she would believe the principal witness under oath, but opinion evidence generally was not allowed as a medium for supporting credibility. Prater v. State, 107 Ala. 26, 18 So. 238 (1895). Second, Rule 608(a) abandons the historic right in Alabama to rehabilitate via evidence of a witness’s good general reputation as a whole, without regard to a pertinent trait. Dickson v. Dinsmore, 291 Ala. 353, 122 So. 437 (1929).

Rule 608(a) expressly provides that impeachment via evidence of reputation or opinion opens the door to the rehabilitation of the witness through positive evidence of reputation or opinion. Except for the admission of opinion evidence, this is consistent with the traditional practice in Alabama. See Bill Steber Chevrolet-Oldsmobile, Inc. v. Morgan, 429 So.2d 1013 (Ala.1983) (impeachment via evidence of bad general reputation held to justify rehabilitation by evidence of good general reputation). Beyond this, however, Rule 608(a) does not attempt to stipulate what forms of attack upon credibility will open the door for the calling party to rehabilitate the impeached witness by way of evidence of reputation or opinion for truthfulness. The phrase “or otherwise” in Rule 608(a) is intended to leave much to the discretion of the trial judge. If that discretion is exercised consistent with traditional common law, it is reasonable to expect that generally rehabilitation via Rule 608(a) will be allowed when it is clear that the witness’s credibility has been attacked. This generally would be the case when there has been impeachment by evidence of reputation (or opinion) as authorized under Rule 608(a), by evidence of convictions (Rule 609), or by evidence of inconsistent statements. See, e.g., Snead v. Jones, 169 Ala. 143, 53 So. 188 (1910) (evidence of conviction as authorizing rehabilitation); Dickson v. Dinsmore, 219 Ala. 353, 122 So. 437 (1929) (self-contradiction as authorizing rehabilitation); C. Gamble, McElroy’s Alabama Evidence § 176.01 (4th ed. 1991). As a general rule, only if a witness’s bias is so strong as to imply corruption on the part of the witness will it authorize rehabilitation evidence under Rule 608(a). See Gratton v. State, 455 So.2d 189 (Ala.Crim.App.1984); Tilley v. State, 167 Ala. 107, 52 So. 732 (1910). Likewise, mere contradiction of a witness’s testimony does not constitute a sufficient attack upon credibility to warrant the admission of Rule 608(a) rehabilitation evidence. See Babcock v. Smith, 285 Ala. 557, 234 So.2d 573 (1970). Other attacks upon credibility are to be treated on a case-by-case basis, in a manner consistent with the general rule stated above and with the trial court’s discretion.

Nothing in Rule 608 is intended to affect the evolving case law governing forms of rehabilitation other than evidence of reputation and opinion as authorized in Rule 608(a). Consistent with that authority and with a clear reading of Rule 608(a), however, it would continue to be the law that impeachment by evidence of general reputation or opinion does not entitle the calling party to rehabilitate his or her witness through evidence of prior statements that are consistent with the witness’s present testimony. Luther v. State, 47 Ala.App. 647, 259 So.2d 857, cert. denied, 288 Ala. 745, 259 So.2d 862, cert. denied, 409 U.S. 877 (1972). See C. Gamble, McElroy’s Alabama Evidence § 177.01(1) (4th ed. 1991).

The touchstone of rehabilitation, of course, is that no such evidence is admissible unless and until the principal witness’s character for truthfulness has been attacked. The traditional Alabama rule likewise provides that a witness’s credibility may be supported only after it first has been attacked. See Clark v. State, 56 Ala.App. 67, 318 So.2d 813 (1974), cert. quashed, 294 Ala. 493, 318 So.2d 822, cert. denied, 423 U.S. 937 (1975); Bill Steber Chevrolet-Oldsmobile, Inc. v. Morgan, 429 So.2d 1013 (Ala.1983).

Section (b). Specific instances of conduct. Rule 608(b) establishes the general principle that a witness’s specific acts that have not been the basis of a criminal conviction may not be asked about or proved by extrinsic evidence when evidence of them is offered to attack or to support credibility. This bar to “specific conduct” evidence of character is consistent with the general exclusionary principle found in Alabama Rule of Evidence 404(a).

The witness’s own conduct. Rule 608 precludes evidence of acts for which there has been no conviction when it is offered upon the theory that such character evidence is probative of whether the witness committing the acts is telling the truth. Contra Fed.R.Evid. 608(b). This rule continues preexisting Alabama law. See Grooms v. State, 228 Ala. 133, 152 So. 455 (1934) (witness could not be asked about his prior acts of thievery); C. Gamble, McElroy’s Alabama Evidence § 140.01(10) (4th ed. 1991). Compare Or.R.Evid. 608(b); Tex.R.Evid. 608(b). The corresponding federal principle, permitting such acts to be inquired about on cross-examination, is hereby rejected. See Fed.R.Evid. 608(b)(1).

Rule 608 does not preclude cross-examination calling for evidence of conduct, or exclude extrinsic evidence of conduct, when that evidence is sought or offered for purposes sanctioned by other rules. If the conduct goes to show the witness’s bias, for example, then it may be inquired about on cross-examination or proven extrinsically after the witness denies that it occurred. Ala.R.Evid. 616. See State v. Garceau, 370 N.W.2d 34 (Minn.Ct.App.1985). See also United States v. Corbin, 734 F.2d 643 (11th Cir.1984) (if the act reflects bias, then the cross-examiner may introduce extrinsic evidence); United States v. Ray, 731 F.2d 1361 (9th Cir.1984) (an act revealing bias may be proven by extrinsic evidence; questioner does not have to accept the witness’s negative answer). By way of further illustration, this rule will not affect the cross-examiner’s ability to ask about a witness’s own acts that are self-contradictory. See United States v. Merida, 765 F.2d 1205, reh’g denied en banc, 770 F.2d 164 (5th Cir.1985); United States v. Opager, 589 F.2d 799 (5th Cir. 1979). Proof of such acts also may be admissible when offered for purposes other than impeachment. See United States v. Cutter, 676 F.2d 1245 (9th Cir. 1982) (extrinsic evidence could be admitted via Rule 404(b) to prove that the witness had a “motive” to commit the crime for which the accused is being prosecuted). If the witness denying the conduct is a party, then the cross-examiner may offer extrinsic evidence under the rule permitting proof of an admission. See, e.g., United States v. Calle, 822 F.2d 1016, 1020-21 (11th Cir.1987). See also Ala.R.Evid. 801(d)(2).

Cross-examination of character witness. Rule 608(a) permits impeachment of a principal witness by a character witness’s testimony in the form of reputation for, or opinion of, character for untruthfulness. The character witness offering impeachment testimony may, under Rule 608(b), be asked on cross-examination about any act of the principal witness that is inconsistent with the trait of untruthfulness that was testified to on direct examination. Preexisting Alabama practice required that such a question, asked to impeach the character witness, be prefaced with the phrase “Have you heard?” Compare Watson v. State, 181 Ala. 53, 61 So. 334 (1913). No such preface is required under Rule 608(b).

Additionally, Rule 608(a) permits rehabilitation of a principal witness by a character witness’s relating his or her opinion of the principal witness’s character for, or general reputation for, truthfulness. The character witness offering rehabilitation testimony may, under Rule 608(b), be asked on cross-examination if he or she knows or has heard of the principal witness’s having committed any act that is inconsistent with the trait of truthfulness as testified to by the character witness on direct examination. Again, under prior Alabama law, only the “have you heard” question was permitted. See Crowe v. State, 333 So.2d 902 (Ala.Crim.App.), cert. denied, 333 So.2d 906 (Ala.1976).

Unlike Fed.R.Evid. 608, Ala.R.Evid. 608 contains no provision dealing with the extent to which a witness waives the privilege against self-incrimination by giving testimony. It leaves that question to preexisting and currently evolving constitutional law relating to criminal procedure.

Advisory Committee’s Notes to Amendment to Rule 608(b) Effective October 1, 2013

Rule 608(b) has been amended by replacing the word “credibility” with the phrase “character for truthfulness,” thereby tracking the 2003 amendment to Fed. R. Evid. 608(b). This amendment is not intended to bring any substantive change to Alabama’s general rule, codified in Rule 608(b), which precludes asking a witness about, or offering extrinsic proof of, the witness’s own unconvicted conduct. See Hathcock v. Wood, 815 So. 2d 502, 508 (Ala. 2001); J.B. Hunt Transp., Inc. v. Credeur, 681 So. 2d 1355, 1361 (Ala. 1996). Rather, the amendment conforms Rule 608(b) to its original intent and reaffirms and clarifies that this preclusion applies only when the misconduct is offered under Rule 608(b) on the theory that some unconvicted misconduct possesses probative value upon the witness’s character for truthfulness. As observed in the advisory committee’s notes to the 2003 amendment to the federal rule, the preclusion applies ”only when the sole reason for proffering that evidence is to attack or support the witness’s character for truthfulness.” See also James E. McDaniel, Alabama Rule of Evidence 608(b): The Call for Amendment to Prevent Abuse of the Protections Within the Rule, 57 Ala. L. Rev. 1105 (2006) (arguing that the term “credibility” in Ala. R. Evid. 608(b) should be removed and replaced with the phrase ”character for truthfulness” to make it clear that the testifying witness may be asked about prior unconvicted bad acts that qualify under some other ground of impeachment and noting that this change has already been made to Federal Rule of Evidence 608(b)).

Nothing precludes asking a witness about or offering extrinsic evidence to prove misconduct when it is relevant under some other rule either to impeach or as substantive evidence. As noted in the original Advisory Committee’s Notes to this rule, ”Rule 608 does not preclude cross-examination calling for evidence of conduct, or exclude extrinsic evidence of conduct, when that evidence is sought or offered for purposes sanctioned by other rules.” Ala. R. Evid. 608(b) (Advisory Committee’s Notes). For example, if evidence is proffered to show the witness’s bias, self-contradiction, or sensory defect, the prohibition in Rule 608 does not apply. See Griffin v. State, 790 So. 2d 267, 331-32 (Ala. Crim. App. 1999) (cross-examination about unconvicted misconduct to show self-contradiction not barred by Ala. R. Evid. 608(b)). See also United States v. Brown, 547 F.2d 438, 445 (8th Cir. 1977) (extrinsic evidence to show bias); Lewy v. Southern Pacific Transp. Co., 799 F.2d 1281, 1298 (9th Cir. 1986) (same); Carson v. Polley, 689 F.2d 562, 574 (5th Cir. 1982) (extrinsic evidence to contradict); Kasuri v. St. Elizabeth Hosp. Med. Ctr., 897 F.2d 845, 854 (6th Cir. 1990) (extrinsic evidence of prior inconsistent statement); and United States v. Lindstrom, 698 F.2d 1154, 1162 n.6 (11th Cir. 1983) (noting that Rule 608(b) is not controlling when credibility is attacked by showing impaired capacity to observe, remember, or narrate). Further illustrations are set out in the original Advisory Committee’s Notes to Rule 608. See generally 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 140.01(9)-(10) (6th ed. 2009); C. Gamble, Gamble’s Alabama Rules of Evidence § 608(b) (2d ed. 2002).

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 609. Impeachment by evidence of conviction of crime.

(a)   General rule. For the purpose of attacking the credibility of a witness,

(1)(A)   evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and

(B)   evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2)   evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

(b)   Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction, more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(c)   Effect of pardon, annulment, or equivalent procedure. Evidence of a conviction is admissible under this rule even if the conviction has been the subject of a pardon, annulment, or equivalent procedure.

(d)   Juvenile or youthful offender adjudications. Evidence of juvenile or youthful offender adjudications is not admissible under this rule.

(e)   Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

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Alabama Rule of Evidence 404(a) recognizes the general exclusionary rule under which evidence of a person’s character is inadmissible to prove action in conformity therewith on the particular occasion being litigated. Rule 404(a)(3), however, carves out an exception to this general rule excluding evidence of character. Whenever a witness takes the stand and offers testimony, evidence of the witness’s character for untruthfulness may be admitted as a basis from which to infer that the witness is not telling the truth. This opens the door to any character evidence that is relevant to credibility. Rule 609 serves as an example of such impeachment.

Section (a). General rule. The preexisting Alabama statutory provision authorizing impeachment by evidence showing conviction for a crime involving moral turpitude, Ala. Code 1975, § 12-21-162(b), has been superseded by Rule 609.

Under Rule 609, there will be alternative tests: one based upon the seriousness of the crime, met only if the crime was punishable by death or imprisonment in excess of one year, and the other based upon whether the crime involved dishonesty or false statement. This rule is based upon Federal Rule of Evidence 609(a) as amended January 26, 1990, effective December 1, 1990. The special balancing test embodied in Rule 609(a)(1)(B) is to be applied only to the criminal defendant who testifies in the criminal case in which he or she is being prosecuted.

Crimes involving “dishonesty or false statement,” as indicated in the report of the Senate Committee on the Judiciary during the process of adopting the corresponding Federal Rule 609, include crimes “such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused’s propensity to testify truthfully.” Senate Comm. on Judiciary, Fed. Rules of Evidence, S. Rep. No. 1277, 93d Cong., 2d Sess., 14 (1974).

This rule makes no distinction with regard to the court in which the conviction arises or with regard to the law that establishes the crime. Consequently, contrary to preexisting Alabama law, a conviction is usable even if it occurred in the municipal court or is for a crime that constitutes a violation of a municipal ordinance. Contra Parker v. State, 280 Ala. 685, 198 So.2d 261 (1967); Muse v. State, 27 Ala.App. 271, 196 So. 148, cert. denied, 239 Ala. 557, 196 So. 151 (1940).

Section (b). Time limit. As a general principle, Rule 609(b) recognizes that convictions over ten years old are too remote to be relevant on the question of a witness’s current credibility. In rare circumstances, however, the trial judge may permit impeachment by a conviction more than ten years old, if two elements are met. First, the court must make a determination, in the interests of justice, that the probative value of the conviction, judged by specific facts and circumstances, substantially outweighs its prejudicial effect. Second, as a condition precedent to admissibility, the proponent must have given the adverse party sufficient advance written notice of the intent to use such evidence. Sufficiency of such notice is measured by whether it provides the adverse party a fair opportunity to contest the use of the conviction. Compare Ala.R.Evid. 404(b).

This rule constitutes a significant change in Alabama practice. Historically, remoteness has been determined on a case-by-case basis, with no arbitrary designation as to number of years or other length of time. Harbin v. State, 397 So.2d 143 (Ala.Crim.App.), cert. denied, 397 So.2d 145 (Ala.1981). Much has been left to the discretion of the trial court on this issue. See Davenport v. State, 50 Ala.App. 321, 278 So.2d 769 (1973). If the conviction is not more than ten years old, Rule 609 would leave no discretion in the trial judge to exclude for remoteness, so long as the conviction otherwise meets the requirements of Rule 609. That discretion traditionally vested in Alabama trial judges would continue in regard to the admission of convictions that are more than ten years old.

Section (c). Effect of pardon, annulment, or equivalent procedure. Rule 609(c) affirms the historic practice in Alabama under which a pardon has had no impact upon the admissibility of evidence of a conviction offered for impeachment. Rush v. State, 253 Ala. 537, 45 So.2d 761 (1950). See W. Schroeder, Evidentiary Use in Criminal Cases of Collateral Crimes and Acts: A Comparison of the Federal Rules and Alabama Law, 35 Ala.L.Rev. 241 (1984).

Section (d). Juvenile or youthful offender adjudications. Under Rule 609(d), if the prior crime was the subject of an adjudication in the juvenile court, then it may not be used to impeach. This rule of preclusion remains unchanged from preexisting Alabama law, as embodied in both a statute and the decisions interpreting that statute. See Ala. Code 1975, § 12-15-72(a) and (b) (providing that a disposition in the juvenile court is not a conviction and is not admissible as evidence against the child in any other proceeding in any other court); Copeland v. State Farm Mut. Ins. Co., 536 So.2d 931 (Ala.1988); C. Gamble, McElroy’s Alabama Evidence § 145.01(4) (4th ed. 1991).

Rule 609, unlike its federal counterpart, extends this impeachment preclusion to youthful offender adjudications. See Ala. Code 1975, § 12-15-72 (providing that youthful offender adjudications are not to be deemed convictions).

Juvenile adjudications or youthful offender adjudications may be used for impeachment, of course, if their exclusion would violate a litigant’s constitutional rights, notwithstanding the language of Rule 609(d). See Lynn v. State, 477 So.2d 1365 (Ala.Crim.App.1984), rev’d, 477 So.2d 1385 (Ala.1985).

Section (e). Pendency of appeal. A conviction, otherwise usable for impeachment purposes, is not rendered inadmissible by the fact that it is on appeal. This principle is consistent with preexisting Alabama law. Cups Coal Co. v. Tennessee River Pulp & Paper Co., 519 So.2d 932 (Ala.1988). Evidence of the fact that an appeal is pending is admissible.

Rule 610. Religious beliefs or opinions.

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’s credibility is impaired or enhanced.

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This rule, unchanged from Federal Rule 610, provides that evidence of a witness’s religious beliefs or opinions on matters of religion is not admissible as a basis from which the factfinder might infer that the witness is, because of those beliefs or opinions, more credible or less credible than he or she would be otherwise. In excluding such evidence, at least when it is offered to show an impaired capacity to tell the truth, Rule 610 leaves preexisting Alabama law unchanged. See Asbill v. State, 390 So.2d 1168 (Ala.Crim.App.), cert. denied, 390 So.2d 1176 (Ala.1980); Wright v. State, 24 Ala.App. 378, 135 So. 636 (1931) (holding that such impeachment is precluded by § 3 of the Alabama Constitution of 1901). See also C. Gamble, McElroy’s Alabama Evidence § 141.01(4) (4th ed. 1991). Compare Bush v. Commonwealth, 80 Ky.L.Rptr. 740, rev’d on other grounds, 107 U.S. 110 (1883).

The preclusion in Rule 610 arises only when evidence of religious belief or disbelief is offered as a basis from which the factfinder might infer that the witness’s character for truthfulness is thereby affected. Religious beliefs or opinions on matters of religion, however, could be relevant for other purposes. A witness’s affiliation with a church or other religious organization, for example, could be admissible to show bias if that church or organization is a party to the litigation. See Tucker v. Reil, 51 Ariz. 357, 77 P.2d 203 (1938). Cf. Fed.R.Evid. 610 advisory committee’s note. It likewise is possible for religious beliefs or affiliation to be relevant to the nonimpeachment issues in a trial and, consequently, not to be within the purview of the Rule 610 exclusion. Asbill v. State, 390 So.2d 1168 (Ala.Crim.App.), cert. denied, 390 So.2d 1176 (Ala.1980). See Conrad v. City & County of Denver, 656 P.2d 662 (Colo.1983).

Rule 611. Mode and order of interrogation and presentation.

(a)   Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

(b)   Scope of cross-examination. The right to cross-examine a witness extends to any matter relevant to any issue and to matters affecting the credibility of the witness, except when a party calls an adverse party or an officer, a director, or a managing agent of a public or private corporation or a partnership or association that is an adverse party, or a witness identified with an adverse party. In those excepted situations, cross-examination by the adverse party may be only upon the subject matter of the witness’s examination-in-chief or upon the witness’s credibility.

(c)   Leading questions. Leading questions should not be used on the direct examination of a witness, except when justice requires that they be allowed. Leading questions are permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

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Section (a). Control by court. As witnesses testify and evidence is presented, several procedural issues arise. These issues are to be resolved, as under pre-existing common law, through the judge’s common sense and fairness. The judge has the primary responsibility for the effective working of the adversary system. Alford v. State Farm Fire & Casualty Co., 496 So.2d 19 (Ala.1986) (recognizing that the mode of examining witnesses and the order of introducing evidence are within the discretion of the trial court). See C. Gamble, McElroy’s Alabama Evidence § 433.01 (4th ed. 1977); J. Colquitt, Alabama Law of Evidence § 6.11 (1990). Spelling out detailed rules governing those issues is neither desirable nor feasible. See Fed.R.Evid. 611(a) advisory committee’s note.

At least three goals should guide the exercise of this judicial discretion. First, the mode and order of interrogating witnesses and presenting evidence should be such as will promote the ascertainment of the truth.

Second, efforts should be made to avoid needless consumption of time. The judge’s discretion in this regard is likewise recognized in Ala.R.Evid. 403. The trial judge, for example, has the discretion to limit the number of witnesses who may be called to testify to a particular matter. Allen v. State, 290 Ala. 339, 276 So.2d 583 (1973). See C. Gamble, McElroy’s Alabama Evidence § 10.06 (4th ed. 1991).

Third, witnesses should be protected from harassment or undue embarrassment. Compare Ala. Code 1975, § 12-21-141 (declaring a witness’s right to be protected from improper questions and from a harsh or insulting demeanor). The importance of the testimony, the nature of the inquiry, its relevance to credibility, waste of time, and confusion are factors for the judge to consider in this regard. Efforts to protect the witness, of course, should by no means foreclose efforts to discredit the witness. See Alford v. United States, 282 U.S. 687, 694 (1931) (recognizing that the trial’s judge’s duty to protect a witness arises only when the questions “go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate”). See Ala. Code 1975, § 12-21-137 (giving every party the right of cross-examination, “thorough and sifting,” as to witnesses called against him or her).

Section (b). Scope of cross- examination. Rule 611(b) continues Alabama’s present position as a “wide open rule” jurisdiction regarding matters that may be inquired about on cross-examination. Questions on cross-examination are appropriate as long as they are relevant either to credibility or to any material issue in the case. Moody v. State, 267 Ala.204, 100 So.2d 733 (1957); Cooper v. State, 526 So.2d 602 (Ala.Crim.App.1986). See Ala.R.Civ.P. 43(b) (permitting cross-examination “upon all matters material to every issue of the action”); Ala. Code 1975, § 12-21-137 (declaring that parties have the right to a cross-examination that is “thorough and sifting”). See also C. Gamble, McElroy’s Alabama Evidence § 438.01 (4th ed. 1991).

The more limited “scope of direct examination” standard is adopted, as now provided under Ala.R.Civ.P. 43(b), when one calls an adverse party or a specified agent of an adverse party and that witness is then cross-examined by counsel for the adverse party. This limit on the scope of cross-examination is extended to apply to the adverse party’s cross-examination of a witness identified with the adverse party. See Rule 611(c).

Section (c). Leading questions. This section embraces the traditional Alabama position that leading questions are not permitted during direct examination. It is within the trial judge’s discretion, however, to permit leading questions “when justice requires that they be allowed.” This exception from the “no leading questions” rule retains Alabama’s preexisting statutory provision allowing such questions “when, from the conduct of the witness or other reason, justice requires it.” Ala. Code 1975, § 12-21-138 (superseded by adoption of Rule 611(c)). Rule 43(b), Ala.R.Civ.P., likewise permits leading questions on direct examination “when justice requires.”

Under Rule 611(c), leading questions should always be permitted on cross-examination.

Rule 612. Writing used to refresh memory.

(a)   General rule. Any writing may be used to refresh the memory of a witness.

(b)   Production of writing used to refresh memory. If while testifying a witness uses a writing to refresh his or her memory, then an adverse party is entitled, upon request, to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions of it relating to the witness’s testimony. If it is claimed, in opposition to such a request, that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not delivered pursuant to order under this rule, the court shall make any order justice requires, except that in a criminal case if the prosecution does not comply, the order shall be one striking the testimony of the witness whose memory was refreshed or, if the court in its discretion determines that the interests of justice so require, the order shall be one dismissing the indictment or other charging instrument or declaring a mistrial.

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Section (a). General rule. Section (a) is intended to adopt the traditional American rule that any writing may be used to refresh the memory of a witness. The writing need not possess any particular characteristics – such as having been written by the witness, having been seen by the witness, or having been executed while the matter dealt with in the writing was fresh in the witness’s mind. The writing itself need not be admissible. See United States v. Scott, 701 F.2d 1340 (11th Cir.), reh’g denied, 707 F.2d 523 (11th Cir.), cert. denied, 464 U.S. 856 (1983) (holding that even an inadmissible writing may be used to refresh). It is left to the broad discretion of the trial judge to decide whether the witness possesses a present recollection that needs refreshing. See United States v. Rinke, 778 F.2d 581, 587 (10th Cir.1985). If the witness possesses insufficient recollection to testify fully and accurately, then the writing may be admitted under the separate doctrine of past recollection recorded. See Ala.R.Evid. 803(5).

Section (a) permits the use of any writing for refreshing a witness’s memory. This differs from, and supersedes, the preexisting Alabama practice by which a writing used to refresh, under the doctrine of “present recollection revived,” was required to meet the same prerequisites as were required of a document admitted under the doctrine of “past recollection recorded.” See Connell v. State, 55 Ala. 462, 318 So.2d 710 (1974) (Justice Jones, writing in dissent, attacks Alabama requirements that, if a writing is used to refresh, the witness must first be shown to have seen the writing and to have verified its correctness at a time when the matter recorded was fresh in the witness’s mind); M. Walker, Present Recollection Revived and Past Recollection Recorded, 6 Cumb.L.Rev. 471 (1975); C. Gamble, McElroy’s Alabama Evidence §§ 116.01, 116.02, 116.03 (4th ed. 1991). See also Ex parte Moore, 540 So.2d 706 (Ala.1988).

Section (b). Production of writing used to refresh memory. When a writing is being used to refresh a witness’s memory, the adverse party has the right to have the writing produced, to inspect it, to cross-examine the witness on it, and to introduce those portions of the writing that relate to the witness’s testimony. Recognition of this right is consistent with preexisting Alabama law. Johnson v. State, 460 So.2d 244 (Ala.Crim.App.1984) (recognizing that this right to see and examine may have reasonable discretionary limits placed upon it); Cooks v. State, 50 Ala.App. 49, 276 So.2d 634, cert. denied, 290 Ala. 363, 276 So.2d 640 (1973); Riley v. Fletcher, 185 Ala. 570, 64 So. 85 (1913); Acklen’s Ex’r v. Hickman, 63 Ala. 494 (1879).

This rule rejects that provision of Fed.R.Evid. 612(2) under which the opponent is permitted access to those writings that will be used to refresh the witness’s memory prior to testifying. The committee considers that federal provision to provide an additional and unnecessary tool of discovery.

When the adverse party requests that the writing be produced, if the party using the writing to refresh a witness’s memory claims that it contains matter unrelated to the testimony of the witness, then the court is to conduct an in camera examination of the writing, excise any portion containing unrelated matters, and order delivery of the remainder to the party requesting it. See Fed.R.Evid. 612 advisory committee’s note.

Rule 613. Prior statements of witnesses.

(a)   Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b)   Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness has been confronted with the circumstances of the statement with sufficient particularity to enable the witness to identify the statement and is afforded an opportunity to admit or to deny having made it. This provision does not apply to admissions of a party opponent as defined in Rule 801(d)(2).

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Section (a). Examining witness concerning prior statement. Historic common law in Alabama, as well as in the majority of states, has required that a writing be shown to a witness, and the witness be given the opportunity to read it, before the witness may be asked about inconsistent statements contained therein. Parker v. State, 266 Ala. 63, 94 So.2d 209 (1956). That requirement has received considerable criticism as an unnecessary impediment to cross-examination. This rule abandons it. See 4 J. Wigmore, Wigmore on Evidence § 1260 (Chadbourn rev. 1970). This rule also abandons any requirement that the contents of a prior oral statement be disclosed to the witness before the witness may be questioned regarding that prior statement.

While one need not disclose to a witness a statement or its contents before inquiring as to the witness’s inconsistent statements therein, it must be shown or disclosed to opposing counsel upon request. “The provision for disclosure to counsel is designed to protect against unwarranted insinuations that a statement has been made when the fact is to the contrary.” Fed.R.Evid. 613 advisory committee’s note.

Nothing in Rule 613 is intended to defeat the application of the best evidence rule, see Ala.R.Evid. 1002, whereby the original must be produced, or its unavailability accounted for, when one is proving the contents of a writing. Likewise, Rule 613 does not supersede Ala.R.Civ.P. 26(b)(3), under which one is entitled on request to a copy of that person’s own statement.

Section (b). Extrinsic evidence of prior inconsistent statement of witness. As under historic Alabama evidence law, a proper predicate must be established by confronting the witness with the prior inconsistent statement before offering extrinsic evidence to prove it. Green v. State, 233 Ala. 349, 171 So. 643 (1937). See C. Gamble, McElroy’s Alabama Evidence § 157.01 (4th ed. 1991). The policy underlying such a requirement is that the witness should be afforded an opportunity to deny. The predicate would consist of a showing of the general circumstances surrounding the statement. See Perry v. Brakefield, 534 So.2d 602 (Ala.1988). It is required only that the circumstances making up the predicate be stated with reasonable certainty. Junior v. State, 411 So.2d 850 (Ala.Crim.App.1982). See C. Gamble, McElroy’s Alabama Evidence § 157.01(3) (4th ed. 1991).

Nothing in this rule abrogates the requirement that if the witness denies having made the statement then any extrinsic evidence of the prior inconsistent statement must be properly authenticated.

This rule specifically provides that no foundational requirements need be met if the statement qualifies under Ala.R.Evid. 801(d)(2) as an admission of a party opponent. See C. Gamble, McElroy’s Alabama Evidence § 180.01(3) (4th ed. 1991) (no foundation required as a condition precedent to proving a party’s admission).

Nothing in Rule 613(b) affects that line of authority providing that a witness’s acknowledgment of having made a prior statement precludes the use of extrinsic evidence to prove the inconsistent statement. Usrey v. State, 36 Ala.App. 394, 56 So.2d 790 (1952).

Appropriate exceptions to the Rule 613 predicate requirements are allowed under Ala.R.Evid. 806, which governs the use of an inconsistent statement to impeach an unavailable or nontestifying hearsay declarant. Compare Shell v. State, 88 Ala. 14, 7 So. 40 (1889) (permitting the proof of inconsistent statement of dying declarant without laying any predicate).

Rule 614. Calling and interrogation of witnesses by court.

(a)   Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b)   Interrogation by court. The court may interrogate witnesses, whether they were called by the court or by a party.

(c)   Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

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Section (a). Calling by court. Rule 614(a), like its counterpart in the Federal Rules of Evidence, recognizes that the trial judge can call witnesses. Any party can cross-examine any witness called by the judge.

Pre-existing Alabama law has allowed the trial judge to call witnesses. See Jones v. State, 292 Ala. 126, 290 So.2d 165 (1974); C. Gamble, McElroy’s Alabama Evidence § 445.01 (4th ed. 1991). In calling witnesses, the trial judge is not to show partiality or to indicate an opinion as to the just outcome of the case. See Kissic v. State, 266 Ala. 71, 94 So.2d 202 (1957); Moore v. United States, 598 F.2d 439 (5th Cir.1979).

Section (b). Interrogation by court. The trial court may question witnesses, whether they have been called by the court or by one of the parties. This rule is adopted without substantial change from Fed.R.Evid. 614(b). This principle historically has been recognized in the common law of both Alabama and the United States as a whole. See 3 J. Wigmore, Wigmore on Evidence § 784 (Chadbourn rev. 1970); Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955); C. Gamble, McElroy’s Alabama Evidence § 121.04 (4th ed. 1991).

The trial judge may not question a witness in such a way as to indicate partiality for a party or as to indicate the judge’s own feelings with regard to the credibility of a witness. To do so is to abandon the proper judicial role, by taking on the profile of an advocate; to do so would be an abuse of discretion and could lead to a reversal on appeal. See, e.g., Amatucci v. Delaware & Hudson Ry., 745 F.2d 180 (2d Cir.1984) (indicating that the judge may not ask irrelevant questions); Moore v. United States, 598 F.2d 439 (5th Cir.1979) (the trial judge, after questioning witnesses, should remind jurors that they are the sole factfinders in the case); United States v. Hickman, 592 F.2d 931 (6th Cir.1979) (conviction of defendant reversed where the trial judge interjected himself into the trial proceedings more than 250 times and intimated a disbelief in the story of the defense). See also Richardson v. State, 403 So.2d 293 (Ala.Crim.App.), aff’d, 403 So.2d 297 (Ala.1981).

Section (c). Objections. Objecting to the actions of the trial judge, in either calling or questioning witnesses, may prove damaging if done in the presence of the jury. Consequently, section (c), identical to Fed.R.Evid. 614(c), recognizes the right of the objecting party to object either at the time the alleged error is committed or at the next opportunity when the jury is not present. Rule 614(c) thus provides an exception to the general principle that a timely objection must come at the moment of the alleged error. See Davis v. Southland Corp., 465 So.2d 397 (Ala.1985).

Rule 615. Exclusion of witnesses.

At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, (3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause, or (4) a victim of a criminal offense or the representative of a victim who is unable to attend, when the representative has been selected by the victim, the victim’s guardian, or the victim’s family.

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As with the pre-existing Alabama evidence law, the trial judge, on the judge’s own motion or on the motion of a party, is vested with the power to exclude witnesses from the courtroom. This historic practice has been referred to both as “sequestration of witnesses” and as “putting witnesses under the rule.” See, e.g., Chatman v. State, 380 So.2d 351 (Ala.Crim.App.1980); C. Gamble, McElroy’s Alabama Evidence § 286.01 (4th ed. 1991).

Through the use of the word “may,” in contrast to the word “shall,” as in the corresponding federal rule, Rule 615 continues the discretionary sequestration that has long existed under Alabama practice. See Lewis v. State, 55 Ala.App. 140, 313 So.2d 566 (1975); Ala.R.Crim.P. 9.3(a) (providing that the court, on its own motion or at the request of any party, may exclude prospective witnesses from the courtroom; that rule is superseded by Ala.R.Evid. 615). Unless the witness falls into one of the four categories specifically described in Rule 615, sequestration is left within the sound discretion of the trial court; the court’s action in sequestering a witness who is not within one of those four categories is reviewed on appeal under an “abuse of discretion” standard. See Camp v. General Motors Corp., 454 So.2d 958 (Ala.1984). The committee emphasizes, however, that Alabama appellate courts frequently observe that, notwithstanding the fact that sequestration is discretionary, the trial court rarely should deny a request for sequestration of witnesses. Otinger v. State, 53 Ala.App. 287, 299 So.2d 333 (1974).

Rule 615 provides that four classes of witnesses are exempt from sequestration or being placed “under the rule.” The provisions relating to the first three classes are taken verbatim from Fed.R.Evid. 615. First, no party who is a natural person may be sequestered. This is consistent with pre-existing Alabama authority and with constitutional considerations. See, e.g., Smith v. State, 253 Ala. 220, 43 So.2d 821 (1950); McDowell v. State, 238 Ala. 101, 189 So. 183 (1939). Second, a party that is not a natural person is entitled to have a representative present. This person is to be an officer or employee of the party and is to be designated by the party’s attorney. Allowing such a witness to be present is consistent with historic Alabama practice. An example of this would be when a police officer, who has been in charge of the state’s investigation, is allowed to remain in the courtroom despite the fact that the officer will be a witness. See, e.g., Portomene v. United States, 221 F.2d 582 (5th Cir.1955). Third, no witness is to be placed “under the rule” if the party calling that witness can show that the presence of the witness is essential to the presentation of that party’s case. The committee contemplates that this third exception would include an agent who handled the transaction being litigated, an expert who advises counsel in the management of the litigation, a guardian, or a next friend. This third exception is consistent with the prior evidence law of Alabama. See, e.g., Nationwide Mut. Ins. Co. v. Smith, 280 Ala. 343, 194 So.2d 505 (1967); Ryan v. Couch, 66 Ala. 244 (1880). Fourth, as provided under a preexisting statute, in a criminal case, the victim of the crime is exempted from the general rule of witness exclusion. See Ala. Code 1975 § 15-14-55. If the victim is unable to attend the trial, then the victim, the victim’s guardian, or the victim’s family can select a representative, and that representative would be exempted from the rule. See Ala. Code 1975, § 15-14-56 (grounds for permitting a victim’s representative to attend are: death of the victim; disability; hardship; incapacity; physical, mental, or emotional condition; age; or other inability). See also Or.R.Evid. 615.1.

On occasion, a party’s expert witness will be permitted to remain in the courtroom, either because the witness is designated as the party’s representative under Rule 615(2) or because the witness’s presence is essential under Rule 615(3). Whenever this occurs, it is only fair that the opposing party’s expert witness likewise be exempted from sequestration. See Camp v. General Motors Corp., 454 So.2d 958, 960 (Ala.1984).

Rule 615 governs the exclusion of witnesses from the courtroom. It leaves to evolving case law the question whether “invoking the rule” (i.e., sequestering witnesses) precludes witnesses from speaking with each other outside the courtroom. While preexisting law has not fully answered this question, several observations may be made regarding the present status of the law. There is no question that the trial judge possesses the discretion to explicitly instruct witnesses not to talk with each other outside the courtroom. See Gautney v. State, 284 Ala. 82, 222 So.2d 175, 178 (1969). A violation of such an order may be dealt with appropriately. See Birmingham Ry. & Elec. Co. v. Ellard, 135 Ala. 433, 33 So. 276, 280 (1903). It appears equally clear that a general invocation of the rule does not preclude the lawyers from meeting with and talking to their witnesses. See Christiansen v. Hall, 567 So.2d 1338 (Ala.1990) (also implying that a general invocation of the rule does not preclude witnesses from talking with each other outside the courtroom). See J. Hubbard, The Rule on Exclusion of Witnesses – Beyond the Courtroom, 53 Ala.Law. 126, 128 (1992) (calling for clarification of the law regarding the impact outside the courtroom of invoking “the rule”).

The preferred sanction for violation of an order placing witnesses under the rule is to punish any offending witness, party, or counsel for contempt. Degg v. State, 150 Ala. 3, 43 So. 484, 486 (1907). See 75 Am.Jur.2d Trial § 250 (1991); J. Hubbard, The Rule on Exclusion of Witnesses – Beyond the Courtroom, 53 Ala.Law. 126, 127 (1992). Rarely should the court exercise its power to exclude the testimony of a witness who has violated the court’s sequestration order. While the witness is subject to punishment for contempt and the adverse party is free, in argument to the jury, to raise an issue as to the witness’s credibility by reason of the violation, a party who is innocent of the violation ordinarily should not be deprived of the witness’s testimony. See 75 Am.Jur.2d Trial § 246 (1991). However, such a sanction may be imposed when a party or the party’s attorney either contributes to or has failed to act reasonably to prevent the violation. See Ex parte Faircloth, 471 So.2d 493, 497 (Ala.1985); J. Hubbard, The Rule on Exclusion of Witnesses – Beyond the Courtroom, 53 Ala.Law. 126, 127 (1992).

Rule 616. Impeachment by evidence of bias, prejudice, or interest.

A party may attack the credibility of a witness by presenting evidence that the witness has a bias or prejudice for or against a party to the case or that the witness has an interest in the case.

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This rule retains the preexisting Alabama practice allowing one to impeach a witness with evidence of acts, statements, or relationships indicating bias. Jones v. State, 527 So.2d 795 (Ala.Crim.App.1988); Alabama Power Co. v. White, 377 So.2d 930 (Ala.1979). The bias that may be shown includes both bias for a party and bias against a party. See C. Gamble, McElroy’s Alabama Evidence § 149.01 (4th ed. 1991).

There is no counterpart to this rule in the Federal Rules of Evidence. Indeed, the federal rules do not specifically mention bias as a form of impeachment. The United States Supreme Court, however, has recognized the propriety of impeaching with evidence of bias, prejudice, or interest, despite the fact that such a medium of impeachment, long recognized at common law, is not expressly mentioned in the Federal Rules of Evidence. United States v. Abel, 469 U.S. 45 (1984).

Rule 701. Opinion testimony by lay witnesses.

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

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Traditional common law, including that in Alabama, generally has precluded a lay witness from giving an opinion. The law has required that the witness place all the facts before the trier of fact, thus placing the trier of fact in just as good a position as the witness to draw a conclusion in the matter. Indeed, it has been said that permitting a lay witness to give an opinion preempts the role assigned to the jurors. Boatwright v. State, 351 So.2d 1366 (Ala.1977); C. Gamble, McElroy’s Alabama Evidence § 127.01(2) (4th ed. 1991).

The rule excluding opinion evidence has been under consistent attack through the years. Professor Morgan argued that it merely furnishes the basis for both foolish appeals and foolish reversals. E. Morgan, Basic Problems of Evidence 220 (1963). Dean Wigmore argued for its total abolition. 7 J. Wigmore, Wigmore on Evidence § 1929 (Chadbourn Rev. 1978). Criticism of this rule finally led to Fed.R.Evid. 701, which vests the trial court with discretion to permit lay witnesses to give opinions but only under certain conditions.

Alabama Rule of Evidence 701, like its identical counterpart under the Federal Rules of Evidence, permits lay witnesses to give opinions whenever two conditions are met. First, the opinion must be rationally based upon the perception of the witness. This is no more than a restatement of the “firsthand knowledge rule,” found in Ala.R.Evid. 602, tailored to opinions. No lay witness may give an opinion based upon facts that the witness did not personally observe. Second, a lay witness with firsthand knowledge may give an opinion only if it is helpful to a clear understanding of the witness’s testimony or to the determination of a fact in issue. A fair amount of discretion is vested in the trial judge regarding the determination of whether opinions are helpful. It is clear, however, that opinions should be excluded as not being helpful if they are “meaningless assertions which amount to little more than choosing up sides.” Fed.R.Evid. 701 advisory committee’s note. Assertions that one is “liable,” “guilty,” or “at fault” generally would not be helpful and thus would properly be excluded. See United States v. Ness, 665 F.2d 248, 249-50 (8th Cir.1981) (proper to preclude opinion that defendant had no intent to “hurt” the bank from which he allegedly misappropriated funds); United States v. Baskes, 649 F. 2d 471, 478 (7th Cir.1980), cert. denied, 450 U.S. 1000 (1981) (holding it not helpful for a witness to be allowed to testify that conduct was “unlawful” or “wilful”); Scheib v. Williams-McWilliams Co., 628 F.2d 509, 511 (5th Cir.1980) (trial court did not abuse its discretion by precluding lay opinion that a dredge tender was “dangerous”).

The common law of Alabama has seen the evolution of many exceptions that allow opinion evidence notwithstanding the general rule of exclusion. The committee contemplates that most, if not all, of those exceptions will be recognized under Rule 701, under the analysis that in those situations the opinions are “helpful” to the trier of fact. Alabama has long recognized, for example, that a lay witness may give an opinion when the witness is unable to relate the facts to the jurors well enough to place the jurors in as good a position as the witness was in to reach an opinion or to draw a conclusion. Some would call this the “collective facts” exception to the opinion evidence rule. See Matthews Bros. Constr. Co. v. Lopez, 434 So.2d 1369 (Ala.1983) (lay witness permitted to give opinion as to freshness or age of skidmarks); Sanford v. Sanford, 355 So.2d 365 (Ala.1978) (lay opinion as to value); Jones v. Moore, 322 So.2d 682 (Ala.1975) (lay opinion as to another’s mental capacity); Burke v. Tidwell, 211 Ala. 673, 101 So. 599 (1924) (lay witness allowed to testify that another was “drunk”); C. Gamble, McElroy’s Alabama Evidence §§ 127.01(3), 128.01 (lay witness’s opinion that another was sane), 128.02 (lay opinion that another was insane), 128.03 (attesting witness’s opinion as to mental capacity of a testator), 128.10(2) (admissibility of lay opinion as to the actual bodily condition of another), 128.10(3) (admissibility of lay opinion as to the apparent bodily condition of another), 128.10(4) (lay opinion as to one’s own bodily condition) (4th ed. 1991).

Rule 702. Testimony by experts.

(a)   If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

(b)   In addition to the requirements in section (a), expert testimony based on a scientific theory, principle, methodology, or procedure is admissible only if:

(1)   The testimony is based on sufficient facts or data;

(2)   The testimony is the product of reliable principles and methods; and

(3)   The witness has applied the principles and methods reliably to the facts of the case.

The provisions of this section (b) shall apply to all civil state-court actions commenced on or after January 1, 2012. In criminal actions, this section shall apply only to nonjuvenile felony proceedings in which the defendant was arrested on the charge or charges that are the subject of the proceedings on or after January 1, 2012. The provisions of this section (b) shall not apply to domestic-relations cases, child-support cases, juvenile cases, or cases in the probate court. Even, however, in the cases and proceedings in which this section (b) does not apply, expert testimony relating to DNA analysis shall continue to be admissible under Ala. Code 1975, § 36-18-30.

(c)   Nothing in this rule is intended to modify, supersede, or amend any provisions of the Alabama Medical Liability Act of 1987 or the Alabama Medical Liability Act of 1996 or any judicial interpretation of those acts.

[Amended 11-29-2011, eff. 1-1-2012.]

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Historically, expert witnesses have been permitted to give opinions only upon subjects that are held to be beyond the understanding of the average layperson. The theory underlying this common law principle is that the jurors, on subjects of common knowledge, are just as qualified to draw their own conclusions and it would be a preemption of their role and function to allow an expert to testify as to those subjects. See Ala. Code 1975, § 12-21-160 (superseded by adoption of the present rule). Rule 702, identical to the corresponding Federal Rule of Evidence, changes the focus from whether the subject of the testimony is beyond common understanding to whether the expert’s opinion or testimony will assist the trier of fact. Under this rule it is possible that an expert opinion or testimony on a question of common knowledge would be admitted by the trial judge as helpful to the trier of fact.

The phrase “assist the trier of fact,” used by Rule 702 as the threshold test for expert testimony, is not new to Alabama. Alabama historically and generally has refused expert testimony or opinion on a subject that is within the understanding of the average layperson. Recent decisions dealing with expert testimony on such subjects, however, have departed from this position and in speaking of expert testimony have increasingly used the words “helpful to” or “assist” the trier of fact. See, e.g., Baker v. Edgar, 472 So.2d 968 (Ala.1985) (expert opinions admitted because they would “greatly assist the members of the jury”); Price v. Jacobs, 387 So.2d 172 (Ala.1980) (using the term “helpful” in ruling on admissibility of expert opinion); Glaze v. Tennyson, 352 So.2d 1335 (Ala.1977) (declaring that the test is whether the expert opinion will aid the trier of fact). See also C. Gamble, McElroy’s Alabama Evidence § 127.01(5) (4th ed. 1991).

Rule 702, by using the term “or otherwise,” recognizes the admissibility of expert testimony in nonopinion form. The advisory committee’s note to Fed.R.Evid. 702 states:

“Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.”

Much discretion remains vested in the trial judge to determine whether a proffered witness qualifies as an expert. See Griffin v. Gregory, 355 So.2d 691 (Ala.1978) (observing that whether to allow a witness to testify as an expert is largely in the trial court’s discretion and that the exercise of this discretion will not be disturbed except for abuse). The applicable law on this subject should remain largely as it was before the adoption of Rule 702. For example, under Rule 702 “qualification” should continue to be defined broadly, so that one may gain an expertise through practical experience as well as through formal training or education. See, e.g., International Telecommunications Sys. v. State, 359 So.2d 364 (Ala.1978) (recognizing that experience and practical knowledge, as fully as formal education, qualify one to make technical judgments).

Experts often base their opinions and other testimony upon the results of scientific tests. Rule 702 does not undertake to answer the question whether such tests possess sufficient reliability to be admissible. The standard applied in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), has become the standard adopted by Alabama. See Ex parte Perry, 586 So.2d 242, 247 (Ala.1991). Scientific tests are admissible only when they have gained general acceptance in the particular field. Kent v. Singleton, 457 So.2d 356 (Ala.1984); Ex parte Dolvin, 391 So.2d 677 (Ala.1980). Further development of Alabama law on this subject is left to the case law. See C. Gamble, McElroy’s Alabama Evidence § 490.01 (4th ed. 1991).

As under preexisting Alabama law, both questions – whether a witness is qualified as an expert and whether, if so qualified, that witness may give expert opinion or testimony on the subject in question – are left largely to the discretion of the trial judge. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974).

The committee, in recommending this Rule 702, gave due consideration to the latest suggested amendment to Fed.R.Evid. 702, one proposed in 1991 by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. The committee agreed that there are problems in the present use of expert witnesses but that the proposed amendment to the federal rule raises more questions than it answers. See J. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound: It Should Not be Amended, 138 F.R.D. 631 (1991). Consequently, the committee did not recommend incorporating the terms of that proposed federal amendment into Ala.R.Evid. 702.

Advisory Committee’s Notes to Amendment to Rule 702 Effective January 1, 2012

Rule 702 was amended in response to a 2011 amendment to § 12-21-160, Ala. Code 1975, see Act No. 2011-629, Ala. Acts 2011, which establishes new admissibility criteria for expert scientific testimony. Act No. 2011-629 provides:

”Section 1. Section 12-21-160 of the Code of Alabama 1975, is amended to read as follows:

Ӥ 12-21-160.

”(a)   Generally. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

”(b)   Scientific evidence. In addition to the requirements set forth in subsection (a), expert testimony based on a scientific theory, principle, methodology, or procedure is only admissible if:

”(1)   The testimony is based on sufficient facts or data,

”(2)   The testimony is the product of reliable principles and methods, and

”(3)   The witness has applied the principles and methods reliably to the facts of the case.

”Section 2. Nothing in this act shall modify, amend, or supersede any provisions of the Alabama Medical Liability Act of 1987 and the Alabama Medical Liability Act of 1996, commencing with Section 6-5-540 of the Code of Alabama 1975, et seq., or any judicial interpretation thereof.

”Section 3. This act shall apply to all civil state court actions commenced on or after the effective date of this act. In criminal actions, this act shall only apply to non-juvenile felony proceedings in which the defendant that is the subject of the proceeding was arrested on the charge that is the subject of the proceeding on or after January 1, 2012. This act shall not apply to domestic relations, child support, juvenile, or probate cases.

”Section 4. The provisions of this act, where inconsistent with any Alabama Rule of Civil Procedure, Alabama Rule of Criminal Procedure, or Alabama Rule of Evidence, including, but not limited to, Ala. R. Evid. 702, shall supersede such rule or parts of rules.

“Section 5. This act shall become effective on January 1, 2012.”

To promote uniformity and avoid confusion, Rule 702 has been amended to adopt the admissibility standard for scientific evidence set forth in Section 1 of Act No. 2011-629, amending § 12-21-160. To promote clarity, this amendment divides Rule 702 into subsections. The text of Rule 702, as it read before this amendment, has been placed unchanged in section (a), and the new admissibility standard for scientific evidence is set forth in section (b).

Section (a) Generally. The amendment merely places the text of the former rule in a separate section. No changes have been made to the text, and preexisting judicial authority interpreting Rule 702 remains applicable to Rule 702(a).

Section (b) Scientific Evidence. The language in subsections (b)(1), (b)(2), and (b)(3) is identical to language added to Rule 702 of the Federal Rules of Evidence in response to the United States Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The amendment adopts the approach taken in Daubert for determining the admissibility of scientific evidence. Consequently, the Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), general-acceptance test has been supplanted, with few exceptions. The amendment requires trial judges to act as “gatekeepers” and determine whether the scientific evidence is both ”relevant and reliable.” See Daubert, 509 U.S. at 597.

The Daubert test is not new to Alabama. By statute, the admissibility of scientific expert testimony based on DNA analysis has been governed by the test set forth in Daubert since 1994. See Ala. Code 1975, § 36-18-30. This amendment is not intended to effect any change in the line of well developed judicial authority that has applied and interpreted the Daubert test pursuant to § 36-18-30. See generally Turner v. State, 746 So. 2d 355 (Ala. 1998) (discussing § 36-18-30 and the requirements of the Daubert test); 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 490.01(11) (6th ed. 2009)(discussing the admissibility of DNA evidence under the Daubert standard). The admissibility criteria imposed generally on all scientific evidence by Rule 702(b) is the same Daubert criteria imposed on DNA evidence by § 36-18-30.

Court Comment to Amendment to Rule 702 Effective January 1, 2012

The Advisory Committee recommended to the Court that the legislative exceptions set out in Section 3 of Act No. 2011-629, Ala. Acts 2011, not be incorporated into the amendment to Rule 702. The Court, however, disagreed and incorporated those exceptions into Rule 702(b). By doing so, the Court did not intend to affect the applicability of Ala. Code 1975, § 36-18-30, which provides that the admissibility of scientific expert testimony based on DNA analysis is governed by the test set forth in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and added a sentence to clarify that § 36-18-30 still governs the admissibility of scientific expert testimony based on DNA analysis, even in domestic-relations cases, child-support cases, juvenile cases, and cases pending in the probate courts.

The provisions of section (a) apply in all cases where Rule 702 was previously applied. The provisions in section (b), however, do not apply in all cases. Except as otherwise noted in the rule, they apply in all civil state-court actions commenced on or after January 1, 2012. In criminal actions, section (b) applies only in nonjuvenile felony proceedings in which the defendant who is the subject of the proceeding was arrested on the charge that is the subject of the proceeding on or after January 1, 2012. In addition, except as to expert testimony governed by § 36-18-30, the provisions of section (b) do not apply to testimony in domestic-relations cases, child-support cases, juvenile cases, or cases in the probate court.

The provisions of the Alabama Medical Liability Act of 1987 and the Alabama Medical Liability Act of 1996, § 6-5-540 et seq., Ala. Code 1975, and any judicial interpretation of those provisions remains unaffected by this amendment.

Note from the reporter of decisions: The order amending Rule 702, Alabama Rules of Evidence, effective January 1, 2012, and adopting the Advisory Committee’s Notes to Amendment to Rule 702 Effective January 1, 2012, and the Court Comment to Amendment to Rule 702 Effective January 1, 2012, is published in that volume of Alabama Reporter that contains Alabama cases from __ So. 3d.

Rule 703. Bases of opinion testimony by experts.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect

[Amended 8-15-2013, 3ff. 10-1-2013.]

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Experts may acquire the facts, upon which they base their opinions and testimony, by firsthand observation. This would be exemplified by a treating physician who is called to testify. Armstead v. Smith, 434 So.2d 740 (Ala.1983); Jones v. Keith, 223 Ala. 36, 134 So. 630 (1931). However, experts historically have been exempted from the requirement of possessing firsthand knowledge; indeed, experts are the only witnesses so exempted. The common law has recognized the familiar hypothetical question as a primary source from which the expert could gain a knowledge, albeit secondhand, of the facts. Alabama Power Co. v. Robinson, 447 So.2d 148 (Ala.1983). Under Rule 703, two additional sources exist for the facts upon which the expert’s opinion may be based. First, the expert may attend the trial and there be made privy to the facts upon which his or her testimony is to be based. This means of being furnished the facts, insofar as not requiring a hypothetical question, is new to Alabama practice. See Porter v. State, 135 Ala. 51, 33 So. 694 (1903); Gunter v. State, 83 Ala. 96, 3 So. 600 (1888). Rule 703 also provides, however, that the facts may be made known to the expert outside the trial or hearing at which the expert is testifying. This includes data presented to the expert by means other than personal perception, such as through the opinions, records, or reports of others.

Rule 703 leaves unaffected the preexisting Alabama law requiring that the facts or data relied upon by the expert, and gotten by the expert other than by firsthand knowledge, generally must be admitted into evidence. See C. Gamble, McElroy’s Alabama Evidence § 127.01(5) (4th ed. 1991). An expert generally may not, for example, base an opinion upon inadmissible hearsay. Ex parte Wesley, 575 So.2d 127 (Ala.1990). See also T.G.S. v. D.L.S., 608 So.2d 743 (Ala.Civ.App.1992); C. Gamble, McElroy’s Alabama Evidence § 100.01 (4th ed. 1991). Rule 703 is taken verbatim from Fed.R.Evid. 703, but it omits that portion of the federal rule providing that an expert may base an opinion upon inadmissible evidence if it is of a type reasonably relied upon by experts in the particular field in forming opinions. See Fed.R.Evid. 703. However, it should be emphasized that the Alabama case law generally precluding an opinion based upon the unadmitted records or reports of others does recognize exceptions. See, e.g., Ex parte Wesley, 575 So.2d 127, 129 (Ala.1990) (acknowledging such exceptions); Sidwell v. Wooten, 473 So.2d 1036 (Ala.1985) (expert allowed to give opinion as to value based at least in part upon hearsay); Jackson v. State, 412 So.2d 302 (Ala.Crim.App.1982) (permitting coroner to base opinion as to cause of death at least partially upon unadmitted toxicologist’s autopsy report). See also C. Gamble, McElroy’s Alabama Evidence § 130.01 (4th ed. 1991).

Advisory Committee’s Notes to Amendment to Rule 703 Effective October 1, 2013

Rule 703 has been amended by adding a second and third sentence to the former rule. The two new sentences are taken verbatim from Rule 703 of the Federal Rules of Evidence and make the Alabama Rule identical to its federal counterpart. The amendment abandons the traditional common-law rule that required information upon which an expert relied in forming an opinion to be admitted into evidence, but which also recognized exceptions. See Swanstrom v. Teledyne Continental Motors, Inc., 43 So. 3d 564, 579 (Ala. 2009) (noting such exceptions and modifications); 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 127.02(5) (6th ed. 2009) (”Alabama’s rule, precluding expert testimony based on inadmissible facts or data has ... been judicially breached in certain situations.”). Cf. Johnson v. Nagle, 58 F. Supp. 2d 1303, 1358 n.46 (N.D. Ala. 1999) (describing Alabama law as “confusing”).

Abandonment of the common-law rule does not mean that expert opinions based on otherwise inadmissible evidence will be automatically admitted. As amended, the second sentence of Rule 703 provides: ”If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.” The phrase “reasonably relied upon” allows an expert to base an opinion on information not admitted into evidence only if other experts in the field normally and customarily rely on such information in forming opinions, and only if such reliance is reasonable. See United States v. Steed, 548 F.3d 961, 975 (11th Cir. 2008) (”’Rule 703, however, is not an open door to all inadmissible evidence disguised as expert opinion.’ ... [U]nder the Rule, ’a law enforcement officer testifying as an expert witness may rely on information he received from other people if such sources of information were regularly relied upon by experts in his field.’” (citations omitted)); Moore v. Ashland Chem., Inc., 126 F.3d 679, 691 (5th Cir. 1997) (”In determining the preliminary question of whether reliance by the expert is reasonable, the party calling the witness must satisfy the court, both that such facts, data or opinions are of the type customarily relied upon by experts in the field and that such reliance is reasonable.”).

In many cases the result reached under the amended rule will be the same as under common-law rule. For example, Alabama courts recognized an exception to the common-law rule that allowed admission of expert opinion testimony based on hearsay if the hearsay was “’”customarily relied on by experts and likely to be trustworthy....“’” Swanstrom v. Teledyne Continental Motors, Inc., 43 So. 3d at 579 (emphasis omitted). The amendment is consistent with this exception. Hearsay that is not trustworthy would not satisfy the ”reasonably relied upon” requirement of the amended rule.

The last sentence of Rule 703 is identical to the sentence added to Federal Rule 703 by amendment in 2000, and it has been added for the same reason—to emphasize that when an expert reasonably relies on otherwise inadmissible information to form an opinion the underlying information is not admissible simply because the expert’s opinion is admissible. The advisory committee’s notes accompanying the 2000 amendment to Federal Rule 703 provide an explanation of how the amendment to the federal rule should be interpreted, which applies equally to the amendment to Ala. R. Evid. 703.

”When information is reasonably relied upon by an expert and yet is admissible only for the purpose of assisting the jury in evaluating an expert’s opinion, a trial court applying this Rule must consider the information’s probative value in assisting the jury to weigh the expert’s opinion on the one hand, and the risk of prejudice resulting from the jury’s potential misuse of the information for substantive purposes on the other. The information may be disclosed to the jury, upon objection, only if the trial court finds that the probative value of the information in assisting the jury to evaluate the expert’s opinion substantially outweighs its prejudicial effect. If the otherwise inadmissible information is admitted under this balancing test, the trial judge must give a limiting instruction upon request, informing the jury that the underlying information must not be used for substantive purposes. See [Ala. R. Evid.] 105. In determining the appropriate course, the trial court should consider the probable effectiveness or lack of effectiveness of a limiting instruction under the particular circumstances.

”The amendment governs only the disclosure to the jury of information that is reasonably relied on by an expert, when that information is not admissible for substantive purposes. It is not intended to affect the admissibility of an expert’s testimony. Nor does the amendment prevent an expert from relying on information that is inadmissible for substantive purposes.

”Nothing in this Rule restricts the presentation of underlying expert facts or data when offered by an adverse party. See [Ala. R. Evid.] 705. Of course, an adversary’s attack on an expert’s basis will often open the door to a proponent’s rebuttal with information that was reasonably relied upon by the expert, even if that information would not have been discloseable initially under the balancing test provided by this amendment. Moreover, in some circumstances the proponent might wish to disclose information that is relied upon by the expert in order to ’remove the sting’ from the opponent’s anticipated attack, and thereby prevent the jury from drawing an unfair negative inference. The trial court should take this consideration into account in applying the balancing test provided by this amendment.

”This amendment covers facts or data that cannot be admitted for any purpose other than to assist the jury to evaluate the expert’s opinion. The balancing test provided in this amendment is not applicable to facts or data that are admissible for any other purpose but have not yet been offered for such a purpose at the time the expert testifies.

”The amendment provides a presumption against disclosure to the jury of information used as the basis of an expert’s opinion and not admissible for any substantive purpose, when that information is offered by the proponent of the expert. In a multi-party case, where one party proffers an expert whose testimony is also beneficial to other parties, each such party should be deemed a ’proponent’ within the meaning of the amendment.”

Fed. R. Evid. 703 (Advisory Committee’s Notes).

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 704. Opinion on ultimate issue.

Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.

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Evidence of an opinion that goes to an ultimate issue in the case is inadmissible, whether offered by a lay witness or by an expert witness. McLeod v. Cannon Oil Corp., 603 So.2d 889 (Ala.1992); Robinson v. State, 574 So.2d 910 (Ala.Crim.App.1990). See C. Gamble, McElroy’s Alabama Evidence § 127.01(5)(d) (4th ed. 1991). The basis for the preclusion is the fear that the admission of such an opinion will preempt the role and function of the factfinder. Rule 704 continues the preexisting principle that witnesses generally are precluded from giving opinions that involve legal definitions or conclusions. See, e.g., Ex parte Dial, 387 So.2d 879 (Ala.1980) (reversible error to permit policeman to give opinion as to whether an individual was an “accomplice”); Wilkinson v. Duncan, 294 Ala. 509, 319 So.2d 253 (1975) (physician not permitted to give opinion that testator had sufficient testamentary capacity to make a will). See also C. Gamble, McElroy’s Alabama Evidence § 128.07 (4th ed. 1991). That principle is often referred to as the “ultimate issue rule.”

The adoption of Rule 704 constitutes a rejection of the corresponding federal rule, under which the ultimate issue rule is abandoned. See Fed.R.Evid. 704(a).

There is no intent that adoption of Rule 704 should abrogate preexisting case law liberalizing the application of the ultimate issue rule. See, e.g., Harrison v. Wientjes, 466 So.2d 125, 127 (Ala.1985); Boatwright v. State, 351 So.2d 1366 (Ala.1977).

Rule 705. Disclosure of facts or data underlying expert opinion.

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

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Under preexisting Alabama law, as well as the common law nationally, an expert could not give an opinion before the jury was made privy to the facts upon which the opinion was based. See Thompson v. Jarrell, 460 So.2d 148 (Ala.1984) (holding that the facts known to the expert or hypothesized must be facts in evidence); Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974). Rule 705, like its identical federal counterpart, eliminates the requirement that the underlying facts or data be disclosed as a condition precedent to the expert’s giving an opinion or other testimony. As a practical matter, this abandonment of the historic requirement is aimed primarily at the hypothetical question. See Fed.R.Evid. 705 advisory committee’s note. The hypothetical question has been much criticized for its wordiness and for its allowing counsel to arbitrarily select facts and, thereby, to fashion a hypothesis that is one-sided. See E. Cleary, McCormick on Evidence § 16 (3d ed. 1984); 2 J. Wigmore, Wigmore on Evidence § 686 (Chadbourn Rev. 1979) (observing: “It is a strange irony that the hypothetical question, which is one of the few truly scientific features of the rules of evidence, should have become that feature which does most to disgust men of science with the law of evidence.”); Judge Learned Hand, New York Bar Association Lectures on Legal Topics, 1921-1922 (characterizing the hypothetical question as “the most horrific and grotesque wen on the fair face of justice”); M. Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 426 (1952).

It is left to the cross-examiner to elicit the facts or data on which the opinion is based, and the witness must, if asked, disclose such information. See Polk v. Ford Motor Co., 529 F.2d 259, 271 (8th Cir.), cert. denied, 426 U.S. 907 (1976) (holding that “[t]he weakness in the underpinnings of such opinions may be developed upon cross-examination and such weakness goes to the weight and credibility of the testimony”). The cross-examiner, of course, is under no obligation to bring out such facts or data and, indeed, may limit inquiry solely to facts or data that are unfavorable to the opinion. The right of the cross-examiner to bring out such facts or data will be fully realized only where liberal pretrial discovery is allowed. See Ala.R.Civ.P. 26(b)(4) (providing for discovery of facts known or opinions held by an opponent’s expert); Ala.R.Crim.P. 18.1(d) (recognizing the right of the defense to inspect and copy any results or reports of physical or mental examinations or scientific tests or experiments).

The trial judge has the discretion to require a preliminary disclosure of the underlying facts in appropriate instances. See C. Gamble, McElroy’s Alabama Evidence § 127.01(5)(e) (4th ed. 1991) (taking the position that “the matter of whether the expert should be required to detail the data observed by him before stating his opinion should be committed in measurable degree to the discretion of the trial court”). This discretion would most often be exercised in those cases where the cross-examining party has been unable effectively to gain advance knowledge, particularly if not provided adequate discovery, sufficient to support an effective cross-examination. See United States v. Lawson, 653 F.2d 299, 301 (7th Cir.1981), cert. denied, 454 U.S. 1150 (1982). Compare Haw.R.Evid. 705; Idaho R.Evid. 705.

Despite the abandonment of the requirement that the facts be in evidence before an expert’s opinion can be admitted, the committee contemplates that many lawyers calling an expert will continue to elicit the facts, on the belief that to do so will positively affect the weight the trier of fact will give to the opinion. See C. Gamble, McElroy’s Alabama Evidence § 127.01(5)(e) (4th ed. 1991) (“Of course, the trial attorney normally will wish to elicit the facts from his expert witness prior to the giving of an opinion in order to bolster the witness’s credibility in the eyes of the jury.”).

Rule 706. Court appointed experts.

(a)   Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness’s duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness’s findings, if any; the witness’s deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. (b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. Except as otherwise provided by law, the court shall order that the compensation be paid by the parties in such a proportion as the court may direct, to be paid at such a time as the court directs, and the costs as so ordered may be charged in the same manner as other costs. (c) Disclosure of appointment. The fact that the court has appointed a particular expert witness will not be disclosed to the jury. (d) Parties’ experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection.

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Section (a). Appointment. Section (a) recognizes the historic power of the trial court to appoint its own expert witnesses. See Alabama Great S. R.R. v. Hill, 90 Ala. 71, 8 So. 90 (1890). Compare J. Sink, The Unused Power of a Federal Judge to Call His Own Witnesses, 29 S.Cal.L.Rev. 195 (1956). The committee contemplates that this rule will make impartial experts more accessible to the courts. See Vt.R.Evid. 706 (reporter’s notes to the effect that the rule “is a desirable one, providing an antidote to the most commonly noted weakness in the use of expert witnesses – the partisanship of experts chosen by the parties”).

The appointment of an expert may be made upon the judge’s own motion or upon that of a party. An expert witness appointed by the court is subject to the deposition procedure. All parties have the right to cross-examine such a witness. See Fed.R.Evid. 706 advisory committee’s note.

Section (b). Compensation. Expert witnesses appointed by the court are to receive reasonable compensation as set by the court. The compensation should come from any source provided by law. If the law provides no other source for the compensation, then the judge may assess the compensation as costs to be paid by each party in such a proportion as the court deems fair.

Section (c). Disclosure of appointment. The fact that an expert has been appointed by the court is not to be disclosed to the jury. Such disclosure is precluded, whether by the court or by the parties themselves. See Elliott v. State, 48 Ala.App. 515, 266 So.2d 318, cert. denied, 289 Ala. 742, 266 So.2d 321 (1972). See also C. Gamble, McElroy’s Alabama Evidence § 445.01 (4th ed. 1991).

Section (d). Parties’ experts of own selection. Like its identical federal counterpart, section (d) provides that the trial court’s exercise of its power to appoint and call an expert witness will not limit the parties in calling their own experts.

Rule 801. Definitions.

The following definitions apply under this article:

(a)   Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

(b)   Declarant. A “declarant” is a person who makes a statement.

(c)   Hearsay. “Hearsay” is 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.

(d)   Statements that are not hearsay. A statement is not hearsay if --

(1)   PRIOR STATEMENT BY WITNESS. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is

(A)   inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or

(B)   consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or

(C)   one of identification of a person made after perceiving the person.

(2)   ADMISSION BY PARTY OPPONENT. The statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subsection (C), the agency or employment relationship and scope thereof under subsection (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subsection (E).

[Amended 8-15-2013, eff. 10-1-2013.]

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Section (a). Statement. The hearsay evidence objection applies only to offered evidence that constitutes a statement. Such a statement is normally in the form of a verbal assertion and may be oral or written. This definition is consistent with pre-existing Alabama practice. See, e.g., McDuffie v. First Nat’l Bank of Tuskaloosa, 450 So.2d 451 (Ala.1984) (handwritten memos attacked as hearsay); Atmore Farm & Power Equip. Co. v. Glover, 440 So.2d 1042 (Ala.1983) (photocopy of a shipping document subject to hearsay objection). It is the assertive nature of the statement that gives rise to the hearsay concern posed by admission of a statement by an out-of-court declarant.

No definitional problem arises with regard to whether assertions in words fall within the ban on hearsay. The difficulty lies in the treatment of conduct. Some conduct – such as pointing in response to a question – is so synonymous with a statement that it clearly constitutes an assertion for purposes of the hearsay rule of exclusion. Other acts, despite their assertive impact in the litigation, are not so easily identified as statements. Rule 801(a) excludes from the operation of the hearsay rule all evidence of conduct that is not intended as an assertion. Such an express “intent to assert” requirement, as a prerequisite for applying the hearsay rule to acts, would appear to go beyond that which is required by preexisting Alabama law. See C. Gamble, McElroy’s Alabama Evidence § 241.01(2) (4th ed. 1991). Under Rule 801, whenever evidence of an act is offered, it will be for the trial court to determine whether it was intended by the actor as an assertion. The burden of proving such an intention is on the party claiming the intention. See Fed.R.Evid. 801(a) advisory committee’s note.

Section (c). Hearsay. This section embraces the historic, definitional nucleus of hearsay – the principle that the statement is hearsay only if it is offered to prove the truth of the matter asserted therein. See Meriweather v. Crown Inv. Corp., 289 Ala. 504, 268 So.2d 780 (1972); 1 Alabama Pattern Jury Instructions: Civil § 15.10 (2d ed. 1993). See also C. Gamble & R. Sandidge, Around and Through the Thicket of Hearsay: Dispelling Myths, Exposing Imposters and Moving Toward the Federal Rules of Evidence, 42 Ala.L.Rev. 5, 13 (1990). This rationale has given rise to a host of “other purposes” for which such a statement may be admitted as exempt from the hearsay exclusion. See, e.g., Ex parte Brown, 499 So.2d 787 (Ala.1986); Piper Aircraft Corp. v. Evans, 424 So.2d 586 (Ala.1982); Tierce v. State, 396 So.2d 1090 (Ala.Crim.App.1981). See also C. Gamble, McElroy’s Alabama Evidence §§ 207.01, 263.01, 273.02, 274.01, 274.02, and 159.02(2) (4th ed. 1991).

Section (d). Statements that are not hearsay. The first subsection lists several types of statements that traditionally would have fallen within the definition of hearsay. These statements, however, are declared arbitrarily not to be hearsay. The second subsection results in the transfer of admissions from their historic designation as constituting an exception to the hearsay rule to reclassification as nonhearsay.

Subsection (d)(1). Prior statement by witness. This provision recognizes the admissibility, over a hearsay objection, of two types of statements made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement. The indicia of reliability possessed by such statements – the presence of the witness, the ability to cross-examine the witness, and the nature of the statement – are deemed strong enough to overcome the traditional hearsay dangers.

Subdivision (d)(1)(A). Inconsistent statement. If a witness testifies, and is subject to cross-examination, then that witness’s prior inconsistent statement is exempted from the hearsay definition, but only if it was made under oath, subject to the penalty of perjury, and made at a trial, hearing, or other proceeding, or in a deposition. This rule is consistent with preexisting Alabama practice. See Hooper v. State, 585 So.2d 137 (Ala.1990); Randolph v. State, 348 So.2d 858 (Ala.Crim.App.), cert. denied, 348 So.2d 867 (1977). See also C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 116 (1988). Compare Ala.R.Civ.P. 32(a)(1) (containing a broad rule with regard to the admissibility of prior inconsistent statements found in a party witness’s deposition). Inconsistent statements generally, offered to impeach a witness, will continue to be admissible upon the theory that such statements are not offered to prove the truth of the matter asserted but, rather, to show that the witness says one thing in court today but said something different in the past. Ala.R.Evid. 801(c); Redus v. State, 243 Ala. 320, 9 So.2d 914 (1942), cert. denied, 318 U.S. 774 (1943). See C. Gamble, McElroy’s Alabama Evidence § 159.02(1) (4th ed. 1991); C. Gamble, C. Howard, & J. McElroy, The Turncoat or Chameleonic Witness: Use of His Prior Inconsistent Statement, 34 Ala.L.Rev. 1 (1983). Common law would not admit such statements as substantive evidence of the truth of the assertion unless the inconsistent statement was made by a party opponent. See Bailey v. State, 41 Ala.App. 39, 123 So.2d 304 (1960). In contrast, Rule 801(d)(1)(A) will work to admit all inconsistent statements, meeting its requirements, as substantive evidence of the truth of the matter asserted in them.

Subdivision 801(d)(1)(B). Consistent statement. An impeached witness generally may not be rehabilitated by proof of prior consistent statements. Such rehabilitation evidence may be offered, however, if the cross-examiner suggests that the witness has recently fabricated the story, has been subjected to improper influence, or has an improper motive. See McDonald v. State, 448 So.2d 460 (Ala.Crim.App.1984). See also C. Gamble, McElroy’s Alabama Evidence § 177.01 (4th ed. 1991). Even if such consistent statements are admitted, however, traditional case law admits them only for the nonsubstantive purpose of bolstering the credibility of the witness. E. Cleary, McCormick on Evidence § 251 (3d ed. 1984). The present rule, however, admits such statements as substantive evidence of the truth of the matters contained therein. The committee considers this departure from the classic hearsay principle appropriate, because the witness is on the stand and is subject to cross-examination concerning the statements.

Subdivision 801(d)(1)(C). Identification statement. This subdivision, found in the corresponding federal rule, has been omitted. This omission constitutes a rejection of the federal principle that a prior identification statement, of a witness who is now testifying and subject to cross-examination, is definitionally nonhearsay and therefore admissible substantively to prove the truth of the matter asserted. See Fed.R.Evid. 801(d)(1)(C). Compare Me.R.Evid. 801(d)(1). Alabama law will continue its refusal to recognize any such arbitrary exemption from the definition of hearsay. See Thomas v. State, 461 So.2d 15 (Ala.Crim.App.), aff’d, 461 So.2d 16 (Ala.1984). See also C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 113 (1988).

An identification statement may be admissible, over a hearsay objection, but this must be accomplished under some other theory. Alabama has long admitted identifications, for example, when offered to prove the act of identification rather than the truth of the matter asserted. See, e.g., Baker v. State, 555 So.2d 273 (Ala.Crim.App.1989); Bui v. State, 551 So.2d 1094 (Ala.Crim.App.1988), aff’d, 551 So.2d 1125 (Ala.1989), vacated, 499 U.S. 971 (1991). See also C. Gamble, McElroy’s Alabama Evidence § 273.01 (4th ed. 1991). An identification statement could be admissible to show lack of credibility if an in-court identification is inconsistent with an out-of-court one. Ala.R.Evid. 801(c). See Whitmore v. Burge, 512 So.2d 1320 (Ala.1987). See also C. Gamble, McElroy’s Alabama Evidence § 242.01 (4th ed. 1991). If the prior identification was made under oath at a trial-like proceeding or in a deposition, and the identifying witness presently testifies and is subject to cross-examination, then nothing precludes the identification from being offered, under Rule 801(d)(1)(A), to prove the substantive truth of the matter asserted, if it is inconsistent with the witness’s present testimony. See Randolph v. State, 348 So.2d 858 (Ala.Crim.App.), cert. denied, 348 So.2d 867 (Ala.1977).

Subsection 801(d)(2). Admission by party opponent. Admissions of a party, as a matter of traditional evidence law, have been classified as an exception to the hearsay rule. This exception is based upon the indicia of reliability and trustworthiness – i.e., one would normally not make a statement against interest unless it was true. In contrast, however, Rule 801(d)(2) declares such admissions to be definitionally nonhearsay. This realignment results in a more generous treatment for such statements as regards their admissibility. Henceforth, any statement of a party, offered against that party, constitutes an admission, without regard to whether it was against that party’s interest at the time the statement was made. Greater admissibility is based upon the concept that the adversary system, rather than any “against interest” circumstance, satisfies the concerns underlying the hearsay rule. Much of the more modern Alabama precedent contains similar language, which places less emphasis upon the “against interest” aspect of the admission and greater emphasis upon whether it is offered against a party and is a statement that is inconsistent with that party’s position at trial. See Woods v. Perryman, 514 So.2d 995 (Ala.1987); Mobile County v. Brantley, 507 So.2d 483 (Ala.1987). Rule 801(d)(2) is consistent with preexisting Alabama law, which exempts admissions from the opinion and firsthand knowledge requirements. See Malone v. Hanna, 275 Ala. 534, 156 So.2d 626 (1963) (opinion); Bains Motor Co. v. Le Croy, 209 Ala. 345, 96 So. 483 (1923) (firsthand knowledge). See also C. Gamble, McElroy’s Alabama Evidence § 180.01(2), (5) (4th ed. 1991).

Subdivision 801(d)(2)(A). The party’s own statement. The classic category of admissions is that including a party’s own statement. Such a statement is not subject to a hearsay objection, even if the party makes the statement in a representative capacity. As long as the statement is relevant to the party’s dealings or activities as a representative, and is offered against the party in that representative capacity, no further inquiry is necessary regarding whether the party was acting in the representative capacity in making the statement.

Subdivision 801(d)(2)(B). Adopted admissions. The principle stated in this subdivision, unchanged from the common law, works to admit any statement of which a party has manifested an adoption. If the adoption is express, then it is admissible just as any other admission is. Ala.R.Evid. 801(d)(2)(A). Adoption, however, may be manifested in any appropriate manner, including conduct. Whether any given conduct rises to the level of constituting adoption depends upon the prevailing circumstances. A historic form of adoptive conduct has been silence. Silence, in response to an accusation, has been held to constitute a tacit admission as to the truth of the accusation. See C. Gamble, McElroy’s Alabama Evidence § 193.02 (4th ed. 1991) (silence as an adopted admission in civil cases); J. Colquitt, Alabama Law of Evidence § 8.3(g) (1990). Rule 801(d)(2)(B) should have no impact upon Alabama’s abrogation of the tacit admission rule in criminal cases. See Ex parte Marek, 556 So.2d 375 (Ala.1989). See also C. Gamble, The Tacit Admission Rule: Unreliable and Unconstitutional – A Doctrine Ripe for Abandonment, 14 Ga.L.Rev. 27 (1979).

Subdivisions 801(d)(2)(C) and (D). Vicarious admissions. These two subdivisions deal with the issue of when an agent’s statement constitutes an admission against the principal. If the agent is expressly authorized to make a statement, then, according to subdivision (C), the expression clearly constitutes an admission of the party granting the authority to speak. See E. Cleary, McCormick on Evidence § 267 (3d ed. 1984). The more difficult issue, and that addressed by subdivision (D), concerns whether an agent’s statement constitutes an admission of the principal when the agent has no express authority to speak. Preexisting Alabama law has dealt with this issue through application of the corresponding principle governing whether the principal is legally responsible for the acts of the agent – i.e., whether the act was committed (or the statement was made) within the line and scope of the agent’s authority. Because many agents do not have the authority to speak, such statements often are not admissible. See C. Gamble, McElroy’s Alabama Evidence § 195.01 (4th ed. 1991). Rule 801(d)(2)(D) embraces a more liberal test for the admissibility of such vicarious admissions. If the statement is related to a matter that is within the scope of the agency or employment of the declarant, then it is admissible against the principal. See Grayson v. Williams, 256 F.2d 61 (10th Cir. 1958); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 8-3(d) (1987).

Subdivision 801(d)(2)(E). Coconspirator admissions. This subdivision continues the historic coconspirator rule, admitting against one conspirator the statements of another if made “during the course and in furtherance of the conspiracy.” See Lundy v. State, 539 So.2d 324 (Ala.Crim.App.1988); Stokley v. State, 254 Ala. 534, 49 So.2d 284 (1950); C. Gamble, McElroy’s Alabama Evidence § 195.03 (4th ed. 1991). As recognized by both state and federal authority, admissibility is denied to statements made after the objectives of the conspiracy have either failed or been achieved. See Wong Sun v. United States, 371 U.S. 471, 490 (1963); Eaton v. State, 280 Ala. 659, 197 So.2d 761 (1967).

Advisory Committee’s Notes to Amendment to Rule 801(d) Effective October 1, 2013

Rule 801(d)(1) has been amended to add subsection (C). This reverses Alabama’s original rejection of the principle that a prior identification statement of a witness who is now testifying and subject to cross-examination is definitionally nonhearsay. Under this revised rule, the prior identification is admissible only when the person who made it testifies at trial and is subject to cross-examination. This ensures that if any discrepancy occurs between the witness’s in-court and out-of-court testimony, the opportunity is available to probe, with the witness under oath, the reasons for the discrepancy so that the trier of fact might determine which statement is to be believed. In criminal cases, the prior identification must meet constitutional and due-process requirements against unnecessarily suggestive identifications.

Rule 801(d)(2) has been amended to respond to issues raised by Bourjaily v. United States, 483 U.S. 171 (1987), and the resulting 1997 amendment to Federal Rule of Evidence 801(d)(2). This amendment codifies the holding in Bourjaily by stating expressly that a court shall consider the contents of a coconspirator’s statement in determining ”the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered.” According to Bourjaily, Rule 104(a) requires these preliminary matters to be established by a preponderance of the evidence.

This amendment extends the reasoning of Bourjaily to statements offered under subsections (C) and (D) of Rule 801(d)(2). In Bourjaily, the Court rejected treating foundational facts pursuant to the law of agency in favor of an evidentiary approach governed by Rule 104(a). The Advisory Committee believes it appropriate to treat analogously preliminary questions relating to the declarant’s authority under subsection (C) and the existence of agency or employment relationship and the scope thereof under subsection (D).

This amendment is in accordance with existing Alabama practice. The principal justification in Bourjaily for allowing “bootstrapping” was Federal Rule of Evidence 104(a), which allows the trial judge to consider the bootstrapping statement permitted under Rule 801(d)(2) in determining the existence of a conspiracy. Alabama’s Rule of Evidence 104(a) is identical to Federal Rule of Evidence 104(a) and would also allow the trial judge to consider the alleged conspirator’s statement in proving the existence of a conspiracy. Additionally, regarding questions of agency, Alabama courts have traditionally allowed the trial judge to consider the statement itself along with other direct and circumstantial evidence. In New Plan Realty Trust v. Morgan, 792 So. 2d 351, 361 (Ala. 2000), the Alabama Supreme Court reviewed the issue of proving agency and, citing several cases that predate the adoption of the Alabama Rules of Evidence, held:

“’”[A]cts and declarations of one whose agency is the subject of inquiry, though incompetent when there is no other evidence of agency or of ratification, become competent for consideration in determining both the fact of agency and the scope of authority originally given, when shown in connection with other evidence of agency.”’

”Warren Webster & Co. v. Zac Smith Stationery Co., 222 Ala. 41, 44, 130 So. 545, 547 (1930) (quoting Birmingham Mineral R.R. v. Tennessee Coal, Iron & R.R. Co., 127 Ala. 137, 145, 28 So. 679, 681 (1900) ...).”

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 802. Hearsay rule.

Hearsay is not admissible except as provided by these rules, or by other rules adopted by the Supreme Court of Alabama or by statute.

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This rule tracks Fed.R.Evid. 802, with modifications to adapt it to Alabama practice. It primarily reasserts the principle that hearsay is generally inadmissible. This broad exclusion, however, is subject to exceptions found in other Alabama Rules of Evidence, in other rules promulgated by the Supreme Court of Alabama, and by evidentiary provisions found in statutes. This general hearsay exclusion, as well as the sources from which exceptions to it derive, expresses traditional Alabama law. See, e.g., Ala. Code 1975, § 12-21-5 (exempting certain hospital records from the hearsay exclusion); Ala. Code 1975, § 12-21-30 (providing for the admission of declarations by deceased person as to ancient rights); Ala.R.Civ.P. 32(a) (authorizing the use at trial of depositions). See also C. Gamble, McElroy’s Alabama Evidence § 242.01 (4th ed. 1991).

Rule 802 expressly exempts from exclusion those hearsay statements whose admissibility is otherwise provided for by law. By implication, however, the hearsay rule is subject also to rules or laws excluding statements that might otherwise be exempted from the hearsay ban. A statement may be admissible as an admission under the definitional exception of Rule 801(d), for example, and yet be excluded because it constitutes an offer of compromise as defined under Rule 408. Likewise, statutory provisions may exclude statements that would otherwise be admissible, either as nonhearsay or as falling within an exception to the hearsay rule. See O’Daniel v. O’Daniel, 515 So.2d 1248 (Ala.Civ.App. 1986), rev’d and remanded, 515 So.2d 1250 (Ala.1987) (excluding evidence, otherwise satisfying traditional evidence rules, because it violated federal wiretapping statute, 18 U.S.C. §§ 2510-2520 (1988)). Compare C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 119 (1988) (containing a treatment of the interaction between traditional evidence principles and statutory rules of admission and exclusion).

While Rule 802 does not expressly mention this fact, questions of admissibility under the hearsay rule, regarding exclusion or admission, may be determined by constitutional requirements. Cf. Chambers v. Mississippi, 410 U.S. 284 (1973); Arthers v. State, 459 So.2d 972 (Ala.Crim.App.1984) (hospital record exception to hearsay rule may be inapplicable if it violates the accused’s constitutional right to confront witnesses); Ashurst v. State, 462 So.2d 999 (Ala.Crim.App.1984) (admissions may be excluded if to admit them would violate the privilege against self- incrimination).

Rule 803. Hearsay exceptions; availability of declarant immaterial.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1)   PRESENT SENSE IMPRESSION. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (2) EXCITED UTTERANCE. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. (3) THEN EXISTING MENTAL,EMOTIONAL,OR PHYSICAL CONDITION. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will. (4) STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (5) RECORDED RECOLLECTION. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. (6) RECORDS OF REGULARLY CONDUCTED ACTIVITY. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (7) ABSENCE OF ENTRY IN RECORDS KEPT IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. (8) PUBLIC RECORDS AND REPORTS. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, when offered against the defendant in criminal cases, matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the state or governmental authority in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. (9) RECORDS OF VITAL STATISTICS. Records or data compilations, in any form, of vital statistics such as those relating to births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. (10) ABSENCE OF PUBLIC RECORD OR ENTRY. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. (11) RECORDS OF RELIGIOUS ORGANIZATIONS. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. (12) MARRIAGE,BAPTISMAL,AND SIMILAR CERTIFICATES. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter. (13) FAMILY RECORDS. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. (14) RECORDS OF DOCUMENTS AFFECTING AN INTEREST IN PROPERTY. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. (15) STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. (16) STATEMENTS IN ANCIENT DOCUMENTS. Statements in a document in existence thirty years or more the authenticity of which is established. (17) MARKET REPORTS,COMMERCIAL PUBLICATIONS. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. (18) LEARNED TREATISES. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. (19) REPUTATION CONCERNING PERSONAL OR FAMILY HISTORY. Reputation among members of a person’s family by blood, adoption, or marriage, or among a person’s associates, or in the community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. (20) REPUTATION CONCERNING BOUNDARIES OR GENERAL HISTORY. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located. (21) REPUTATION AS TO CHARACTER. Reputation of a person’s character among associates or in the community. (22) JUDGMENT OF PREVIOUS CONVICTION. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the state or other governmental authority in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. (23) JUDGMENT AS TO PERSONAL,FAMILY,OR GENERAL HISTORY,OR BOUNDARIES. Judgments as proof of matters of personal, family, or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

[Amended 8-15-2013, eff. 10-1-2013.]

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Paragraph (1). Present sense impression. This paragraph, adopted without change from its federal counterpart, is commonly referred to as the “present sense impression exception.” The event and the statement that describes or explains the event must be substantially contemporaneous. It is this closeness in time, negating the likelihood of deliberate conscious misrepresentation, that provides the requisite trustworthiness to satisfy hearsay concerns. See Fed.R.Evid. 803(1) advisory committee’s note.

The declarant must have perceived the event or condition described. There is no requirement, however, that the declarant have participated in it. The subject matter of a permissible declaration is limited to a description or explanation of the event or condition.

Most statements falling within this exception would have been admissible under preexisting Alabama hearsay law. Many would have qualified as within the res gestae. See St. Louis & San Francisco Ry. v. Sutton, 169 Ala. 389, 55 So. 989 (1910). Yet others would have been admissible under what could fairly be described as an exception embracing contemporaneous statements of nonstartling matters. See Sexton v. State, 239 Ala. 287, 196 So. 744 (1940). See also C. Gamble, McElroy’s Alabama Evidence § 265.02 (4th ed. 1991) (containing a discussion of the admissibility of contemporaneous declarations made while the declarant is perceiving a nonstartling event or condition that the statement narrates, describes, or explains).

Paragraph (2). Excited Utterance. This paragraph, identical to the corresponding federal provision, adopts the traditional common law exception for excited utterances. The theory underlying this exception is that the heat of excitement negates reflection, thus precluding conscious fabrication and guaranteeing trustworthiness. See 6 J. Wigmore, Wigmore on Evidence § 1750 (Chadbourn rev. 1976); R. Hutchins & D. Slesinger, Some Observations on the Law of Evidence: Spontaneous Exclamations, 28 Colum.L.Rev. 432 (1928); R. Hursh, Annotation, Admissibility as Res Gestae of Statements or Exclamations Relating to Cause of, or Responsibility for, Motor Vehicle Accident, 53 A.L.R.2d 1245 (1957).

This exception does not require that the declarant have participated in the startling event or condition. One may well be startled by an event in which he or she has not participated. See Fed.R.Evid. 803(2) advisory committee’s note.

As compared with Rule 803(1), which limits a qualifying statement to a description or explanation of an event or condition, Rule 802(2) embodies a broader scope of subject matter coverage. An excited utterance need only “relate” to the startling event or condition. See Fed.R.Evid. 803(2) advisory committee’s note.

This Rule 803(2) exception exists under preexisting Alabama law and is sometimes termed the “excited utterance exception” or the “spontaneous exclamation exception.” See Ex parte Lawson, 476 So.2d 122 (Ala.1985); C. Gamble, McElroy’s Alabama Evidence § 265.01 (4th ed. 1991). These terms would appear preferable, particularly in limiting the scope to spontaneous declarations, to the term “res gestae,” which is often used in Alabama decisions to describe this same exception. Use of the res gestae doctrine in this area has been soundly criticized by Alabama courts and commentators. See, e.g., Illinois Cent. R.R. v. Lowery, 184 Ala. 443, 63 So. 952 (1913); C. Gamble, McElroy’s Alabama Evidence § 265.01(1) (4th ed. 1991).

Paragraph (3). Then existing mental, emotional, or physical condition. This paragraph is identical to the corresponding federal provision. It makes admissible statements concerning the declarant’s “then existing state of mind, emotion, sensation, or physical condition.” Illustrative examples are statements indicating the declarant’s “intent, plan, motive, design, mental feeling, pain, and bodily health.”

Specifically excluded from this rule of admissibility, with one exception, are statements of “memory or belief” when offered “to prove the fact remembered or believed.” This is consistent with traditional Alabama law, under which this exception is limited to statements of mind expressed before the commission of the act as to which the state of mind is relevant. See McCord v. State, 220 Ala. 466, 126 So. 873 (1930). See also C. Gamble, McElroy’s Alabama Evidence § 262.01 (4th ed. 1991). By express exception under Rule 803(3), however, a “statement of memory or belief” is admissible if it relates to the execution, revocation, identification, or terms of the declarant’s will. Preexisting Alabama law likewise recognizes such an exception for the statements of a testator or testatrix. See Craig v. Perry, 565 So.2d 171 (Ala.1990); Hale v. Cox, 231 Ala. 22, 163 So. 335 (1935); C. Gamble, McElroy’s Alabama Evidence § 263.01 (4th ed. 1991).

Rule 803(3) is consistent with traditional Alabama hearsay law providing for the admission of statements that reflect a then existing physical or mental condition, including statements of one’s own design, plan, intent, motive, emotion, etc. See Cook v. Latimer, 279 Ala. 294, 184 So.2d 807 (1966); C. Gamble, McElroy’s Alabama Evidence § 262.01 (4th ed. 1991). A specialized illustration of this exception, as applied under preexisting Alabama practice, is found in that line of authority allowing the admission of statements involving the declarant’s own then existing pain or physical sensation. Fidelity Serv. Ins. Co. v. Jones, 280 Ala.195, 191 So.2d 20 (1966). See C. Gamble, McElroy’s Alabama Evidence § 261.01 (4th ed. 1991).

Paragraph (4). Statements for purposes of medical diagnosis or treatment. This paragraph is identical to its federal counterpart. At common law, statements relating pain were admissible only if the pain existed when the statements were made. It was said that such statements must deal with present pain and suffering. Statements reflecting past pain and suffering were admitted under traditional law, but only if made to a physician. See Seaboard Sys. R.R. v. Keen, 514 So.2d 1018 (Ala.1987). See also C. Gamble, McElroy’s Alabama Evidence §§ 261.01(3), 110.01 (4th ed. 1991). Rule 803(4) picks up on and expands this latter exception to include all statements that (1) are made for “purposes of medical diagnosis or treatment” and (2) describe “medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

Unlike preexisting Alabama law, this Rule 803(4) exception allows all statements serving reasonably as the basis of diagnosis or treatment. Such statements are admitted as substantive proof of the matter asserted. Contra State Realty Co. v. Ligon, 218 Ala. 541, 119 So. 672 (1929) (containing language indicating that statements made by the patient were receivable to show the basis for the expert’s opinion but not as proof of the truth of the matters asserted). Contrary to traditional Alabama authority, Rule 803(4) allows statements as to causation, so long as they are “reasonably pertinent to diagnosis or treatment.” Lowery v. Jones, 219 Ala.201, 121 So. 704 (1929); C. Gamble, McElroy’s Alabama Evidence § 110.01(2) (4th ed. 1991). Statements of fault ordinarily do not qualify.

Alabama’s preexisting counterpart to this exception applied only to statements made to a physician. Rule 803(4) expands the exception to include qualifying statements made to anyone whose participation or involvement is necessary in the process of diagnosis or treatment. See Fed.R.Evid. 803(4) advisory committee’s note (stating that the statement may be made to hospital attendants, ambulance drivers, or even members of the family). Rule 803(4) supersedes prior Alabama authority to the effect that a physician could not relate statements made during a consultation held solely for the purpose of enabling the physician to testify. See Southern Ry. v. Roberts, 380 So.2d 774 (Ala.1979), overruled by Tidball v. Orkin Exterminating Co., 583 So.2d 239 (Ala.1991); C. Gamble, McElroy’s Alabama Evidence § 261.01(3) (4th ed. 1991).

Paragraph (5). Recorded recollection. Rule 803(5), identical to its federal counterpart, presents the classic hearsay exception known as “past recollection recorded.” A witness may not be able to recollect that to which he or she is called to testify but yet be able to testify that, while the matter was still fresh in the witness’s mind, he or she drafted or adopted the writing and knew that it correctly reflected his or her knowledge. The contents of the writing become evidence in lieu of the witness’s former recollection. This doctrine has long existed under preexisting Alabama practice. See Worsham v. Fletcher, 454 So.2d 946 (Ala.1984); C. Gamble, McElroy’s Alabama Evidence § 116.03 (4th ed. 1991).

This is to be distinguished from the doctrine of “present recollection revived,” commonly known as “refreshing memory,” under which a writing is never admissible to prove the truth of the matter asserted therein but, rather, is just a tool to stimulate the witness’s recollection. See Ala.R.Evid. 612; Ala.R.Evid. 801(c). In true refreshing, as contrasted with the present rule, the witness’s refreshed recollection is the evidence and not the contents of the writing. See Ex parte Moore, 540 So.2d 706 (Ala.1988); C. Gamble, McElroy’s Alabama Evidence § 116.02 (4th ed. 1991).

The primary difference between Rule 803(5) and the principle embodied in Alabama common law lies in the respective threshold requirements regarding the degree of deterioration in the witness’s memory that is a condition precedent to admissibility. Under prior Alabama law, a writing was not admissible under the “past recollection recorded” exception unless the witness manifested “no present recollection” of the matter. See St. Paul Fire & Marine Ins. Co. v. Johnson, 259 Ala. 627, 67 So.2d 896 (1953). Rule 803(5) requires only that the witness manifest an “insufficient recollection to enable the witness to testify fully and accurately.”

The declarant witness, who has insufficient recollection, may have executed the writing, but it is not required that that witness have done so. Such a witness may have seen and adopted what someone else wrote about the event. This principle is consistent with preexisting Alabama practice. See Metropolitan Life Ins. Co. v. Fox, 37 Ala.App. 31, 64 So.2d 122 (1952), cert. denied, 258 Ala. 579, 64 So.2d 135 (1953). Whether the witness wrote or adopted the writing, however, that act must have been done while the matter was still fresh in the witness’s memory. See United States v. Orrico, 599 F.2d 113 (6th Cir.1979). Compare Roll v. Dockery, 219 Ala. 374, 122 So. 630 (1929).

This exception is to be used cautiously, so as to preclude misuse, such as could occur if a witness feigns insufficient recollection in order to get before the jury a written statement of the witness’s testimony that has been carefully prepared for purposes of the litigation.

Much debate existed at common law regarding whether the jury should be allowed to take a “past recollection recorded” writing into the jury room. Rule 803(5) permits the writing to be read to the jury but does not permit it to be admitted as an exhibit unless the adverse party so offers it. This treatment of such writings is consistent with the modern practice regarding depositions. Ala.R.Civ.P. 32; Century Plaza Co. v. Hibbett Sporting Goods, Inc., 382 So.2d 7 (Ala.1980).

Paragraph (6). Records of regularly conducted activity. Paragraph (6) is identical to its federal counterpart. It is the modern, expanded counterpart of the “business records exception” as found in common law hearsay principles. At least as regards business records, this rule is similar to two preexisting Alabama evidence principles – one based on a statute and the other based on a rule of procedure. Alabama business records are admissible under an exception to the hearsay rule in civil cases by authority of Ala.R.Civ.P. 44(h). In criminal cases, they are exempted from the hearsay ban by statute. Ala. Code 1975, § 12-21-43.

This exception is based upon both reliability and necessity. The historic basis for accepting business records as reliable lay in the belief that business records were made by “systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.” See Fed.R.Evid. 803(6) advisory committee’s note. Ala.R.Evid. 803(6) carries through this same principle by the requirement that the document must have been kept in the course of regularly conducted business activity, with it being the regular practice of the business to make the record. From the perspective of necessity, the rule represents that continuing effort to relax “the requirement of producing as witnesses, or accounting for the nonproduction of, all participants in the process of gathering, transmitting, and recording information which the common law had evolved as a burdensome and crippling aspect of using records of this type.” See Fed.R.Evid. 803(6) advisory committee’s note.

Rule 803(6) expands the scope of admissibility by defining the term “business” as including any “business, institution, association, profession, occupation, and calling of every kind,” without regard to whether it is conducted for profit. This breadth of definition is not new to the evidence law of Alabama. See, e.g., Ala. Code 1975, § 12-21-43 (ending with the statement: “The term “business’ shall include a business, profession, occupation and calling of every kind.”); Ala.R.Civ.P. 44(h) (extending the exception to “any business, profession, occupation, or calling”).

This rule of admissibility includes records made when the person entering the information received it from another. Consequently, and as under preexisting Alabama practice, the person who makes the entry in the record does not have to have possessed firsthand knowledge of the facts entered. See Meriweather v. Crown Inv. Corp., 289 Ala. 504, 268 So.2d 780 (1972); Ala. Code 1975, § 12-21-43; Ala.R.Civ.P. 44(h) (providing: “The circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker,... may be shown to affect its weight but ... not... its admissibility.”). See also C. Gamble, McElroy’s Alabama Evidence § 254.01(2) (4th ed. 1991). Compare United States v. Ahrens, 530 F.2d 781, 784 (8th Cir.1976) (holding that Federal Rule 803(6) requires no personal knowledge on the part of the maker of the record). While the entrant or maker of the record is not required to possess a firsthand knowledge of the matters recorded, Rule 803(6) does require that one transmitting information that another records in the regular course of business must have “knowledge” of the facts communicated. Compare Meriweather v. Crown Inv. Corp., 289 Ala. 504, 268 So.2d 789 (1972); Bailey v. Tennessee Coal, Iron & R.R. Co., 261 Ala. 526, 75 So.2d 117 (1954). Equally clear is the fact that the person transmitting the information must be doing so in conformance with regular business practice. Indeed, all parties participating in making the record should be acting within the routine of the business in question.

As a condition precedent to admissibility under this hearsay exception, the proponent must call a witness to lay the prescribed foundation. This is largely the same foundation applicable under pre-rules case law and includes testimony that the record was kept in the course of a regularly conducted business activity and that it was the regular practice of that business activity to make the record. See Ex parte Frith, 526 So.2d 880 (Ala.1987). There is no requirement that the authenticating witness be the custodian, entrant, or maker of the record. See Hammett v. State, 482 So.2d 1330, 1334 (Ala.Crim.App.1985). Not only must the record be relevant to regularly conducted business, but it must be shown that the generation of such a record is a regularly conducted activity of the business. It is this latter requirement that has caused courts to exclude certain records made solely in anticipation of, and in preparation for, pending litigation. See, e.g., United States v. Kim, 595 F.2d 755, 761 (D.C.Cir.1979).

It should be emphasized that satisfying the present hearsay exception does not give the evidence carte blanche admissibility over other independent objections, such as those relating to opinion, irrelevancy, best evidence, etc. See Reeves v. King, 534 So.2d 1107 (Ala.1988); Gullatt v. State, 409 So.2d 466 (Ala.Crim.App.1981). These other evidentiary rules of exclusion would have to be satisfied also. See C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 121 (1988). Rule 803(6), by use of the words “opinions” and “diagnoses,” merely stands for the proposition that these things are admissible through records if they are otherwise qualified under the opinion rule, as would be the case if the statement had been made by an expert, as recognized by Ala.R.Evid. 702, or is “helpful,” as now provided by Ala.R.Evid. 701. Such an interpretation is consistent with Alabama’s preexisting common law.

The forms of a business record are many and varied. This is indicated by the use of the phrases “data compilation” and “in any form.” Use of these phrases is consistent with preexisting Alabama law. See, e.g., Ala. Code 1975, § 12-21-43 (while limiting its provisions to writings or records, this statute calls for the admission of such “in any form”); Ala.R.Civ.P. 44(h); Ala. Code 1975, § 12-21-43 (specifically expanding business records to include any photostatic or photographic copy of the record). The committee anticipates that such forms may include computerized records. See J. Brown, Electronic Brains and the Legal Mind: Computing the Data Computer’s Collision with Law, 71 Yale L.J. 239 (1961); Norton v. State, 502 So.2d 393 (Ala.Crim.App.1987).

Rule 803(6) vests discretion in the trial court to exclude records for a lack of trustworthiness even if the customary elements are satisfied. Such exclusion is in order when “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” In most instances, satisfaction of the rule’s other requirements should result in admissibility unless special trustworthiness problems appear. Cf. United States v. Panza, 750 F.2d 1141, 1150 (2d Cir.1984) (minor incompleteness of files judged as going to weight rather than admissibility). The party objecting to the admissibility of the record, for lack of trustworthiness, carries the burden of proof in that regard. In re Japanese Electronic Prods. Antitrust Litig., 723 F.2d 238 (3d Cir.1983), reversed by Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).

A hospital record that satisfies the elements of this rule would be admissible as under pre-rules Alabama evidence law. See Smoot v. State, 520 So.2d 182 (Ala.Crim.App.1987). Use of the term “diagnoses” makes this clear. Such admissibility abrogates the necessity for, at least for hearsay purposes, the preexisting specialized statute making admissible certified copies of hospital records that are generated in the usual and regular course of the hospital’s business. Ala. Code 1975, § 12-21-5. It is to be emphasized that hospital records satisfying Rule 803(6) are not hereby granted carte blanche admissibility. See Reynolds v. State, 484 So.2d 1171 (Ala.Crim.App.1985).

Paragraph (7). Absence of entry in records kept in accordance with the provisions of paragraph (6). This paragraph is identical to the corresponding federal provision, except for the addition of a comma after the word “memoranda.” Rule 803(6) governs the admissibility of business records, with the term “business” broadly defined. A search for a business record, however, may be undertaken without success. In that event, Rule 803(7) provides that evidence that a particular matter is not included in business records where it logically would have been expected is admissible to prove the nonoccurrence or nonexistence of the matter, if the matter searched for was of a kind regularly made and preserved in the business records made admissible by Rule 803(6). This paragraph, like Rule 803(6), recognizes the trial court’s power to exclude evidence otherwise permitted if a lack of trustworthiness is indicated by “the sources of information or other circumstances.”

Some common law authority stands for the proposition that evidence of an absence of a regular entry is nonhearsay. Yet other decisions, however, have treated such evidence as hearsay and as not within any exception to the hearsay rule. Rule 803(7) lays this issue to rest, in favor of admissibility. See E. Cleary, McCormick on Evidence § 250 (3d ed. 1984).

Alabama authority, predating Rule 803(7), recognized an “absence of entry” exception. See, e.g., Jenkins v. Avery, 257 Ala. 387, 59 So.2d 671 (1952) (school records); Reichert v. Jerome H. Sheip, Inc., 212 Ala. 300, 102 So. 440 (1924) (church records). See also C. Gamble, McElroy’s Alabama Evidence § 220.02 (4th ed. 1991).

The committee intends that this rule have no impact upon that line of Alabama decisions regarding the admission of a futile search as evidence of the unavailability or nonexistence of a certain person. See Seibold v. Rogers, 40 Ala. 438, 18 So. 312 (1895). See also C. Gamble, McElroy’s Alabama Evidence §§ 257.02, 257.07(9), 233.01(15) (4th ed. 1991).

Paragraph (8). Public records and reports. Like business records, public records have attained common law recognition as an exception to the hearsay rule. This treatment is based upon both reliability and necessity. Reliability is based upon the assumption that a public official will carry out the duty to record properly. See E. Cleary, McCormick on Evidence § 15, at 888 (3d ed. 1984). Necessity is furnished by the inconvenience of requiring public officials to appear in court to testify.

Subdivision (A). This subdivision recognizes the admissibility of records, reports, statements, or data compilations setting forth the “activities of the office or agency.” Such admissibility has long been recognized at common law. See Chesapeake & Del. Canal Co. v. United States, 250 U.S. 123 (1919); Ballew v. United States, 160 U.S. 187 (1895).

Subdivision (B). Matters observed by a public official, set forth in a public record or report, are admissible if the official was under a duty to report such matters. Rule 803(8)(B) contains an additional requirement that the official must have observed the recorded matters pursuant to a duty imposed by law. Recognizing a potential conflict with a criminal defendant’s right to confront witnesses, this subdivision provides that matters observed by police officers and other law enforcement personnel are not admissible under this rule when offered in criminal cases against the accused. Numerous decisions at common law have sustained the admission of records of matters observed. See, e.g., T’Kach v. United States, 242 F.2d 937 (5th Cir.1957); Minnehaha County v. Kelley, 150 F.2d 356 (8th Cir.1945).

Subdivision (C). At common law a split of authority existed regarding the admissibility of the “evaluative report.” Rule 803(8)(C), as does its counterpart under the Federal Rules of Evidence, adopts that line of cases calling for admissibility. See Moran v. Pittsburgh-Des Moines Steel Co., 183 F.2d 467 (3d Cir.1950) (Bureau of Mines report regarding cause of gas tank explosion); United States v. Dumas, 149 U.S. 278 (1893). Such admissibility, because of the possible conflict with the constitutional right to confront witnesses, does not apply as to the defendant in a criminal case. Factual findings are admissible only if made pursuant to authority granted by law. While admissibility is assumed if the requirements of Rule 803(8)(C) are met, the trial judge is vested with discretion, as under Rule 803(6), to exclude factual findings if “the sources of information or other circumstances indicate lack of trustworthiness.”

Consistent with the general rule of interpretation that a state’s adoption of a rule based upon a federal model renders as persuasive authority the federal decisions applying the rule, Rule 803(8)(C) is intended to incorporate the interpretation set out in Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988). Regarding a split in authority over the question of whether “factual findings” includes “opinions” or “conclusions,” the Supreme Court in that case adopted a broad, liberal view of Federal Rule 803(8)(C), in light of the “liberal thrust” of the Rules – as illustrated, e.g., in Rules 701-705, dealing with admission of expert testimony. The Supreme Court held that “portions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report.” 488 U.S. at 170.

Rule 803(8)(C) is likewise intended to carry the Eleventh Circuit’s interpretation of Beech Aircraft Corp. v. Rainey. Footnote 13 of the Rainey opinion observes that the case presented no question of whether the Rule distinguishes between opinions regarding “fact” and opinions regarding “law” – i.e., whether “legal conclusions” contained in official reports are admissible. In Hines v. Brandon Steel Decks, Inc., 886 F.2d 299 (11th Cir. 1989), the court decided that “legal conclusions” are not made admissible through Federal Rule 803(8)(C). The Hines opinion offers some guidance for distinguishing “factual” conclusions from “legal” conclusions: “Another way of looking at this inquiry is: Would the conclusion, if made by the district court, be subject to the clearly erroneous standard of review on appeal? If so, then the conclusion is factual; if not, then the conclusion is legal.” 886 F.2d at 303.

By way of illustration, nothing in Rule 803(8)(C) is intended to guarantee the carte blanche or presumptive admissibility of police accident reports as public records. Such records may be excluded because the attendant circumstances indicate a lack of trustworthiness. If a police officer has little training or experience, for example, then the officer’s expertise may not be sufficient to authorize admission of an expert opinion or conclusion. See Ala.R.Evid. 702. No matter what the level of expertise possessed by the investigating officer, a naked legal conclusion found in a police accident report could be excluded if it would not be helpful, as required by Ala.R.Evid. 701(b), or would not assist the trier of fact, as required under Ala.R.Evid. 702.

Some evaluative reports continue to be admissible under federal statutes. See, e.g., 7 U.S.C. § 78 (1994) (findings of Secretary of Agriculture as to grade of grain); 7 U.S.C. § 210(f) (1994) (Secretary of Agriculture’s findings in damages action against stockyard owner); 7 U.S.C. § 292 (1994); 7 U.S.C. § 1622(h) (1994); 8 U.S.C. § 1440(c) (1994); 18 U.S.C. § 4245 (1988); 42 U.S.C. § 269(b) (1988); 46 U.S.C § 679 (1988).

Traditional Alabama common law recognizes the admissibility of public records. See Zinn v. State, 527 So.2d 148 (Ala.1988); Vizzina v. City of Birmingham, 533 So.2d 652 (Ala.Crim.App.1987), aff’d, 533 So.2d 658 (Ala.1988); C. Gamble, McElroy’s Alabama Evidence § 218.01 (4th ed. 1991). In addition to case law, a general statute and a rule of court recognize the exception. See Ala. Code 1975, § 12-21-35; Ala.R.Civ.P. 44. Additionally, there exist numerous other statutes providing for the admissibility of specific public records. See, e.g., Ala. Code 1975, § 12-21-35 (official record of person to whom license plate has been issued; superseded as to civil cases by Ala.R.Civ.P. 44); § 40-7-6 (tax assessment as proof of value or ownership); § 35-16-3 (mortality tables); § 35-16-1 (annuity tables); § 12-17-270 (official reporter’s transcript); § 26-2-40 (adjudication of mental unsoundness); § 22-52-50 (probate judge’s finding of mental disqualification); § 15-16-20 (adjudication of competency to stand trial); § 15-16-22 (report of lunacy commission); § 11-7-8 (survey or plat of county surveyor); § 40-10-30 (recitals in a tax deed); § 12-21-99 (sheriff’s deed or return; superseded in civil cases by Ala.R.Civ.P. 44); § 12-21-93 (statutes of other states).

Paragraph (9). Records of vital statistics. This paragraph is very similar to its federal counterpart. Under this paragraph, records or data compilations in any form – regarding such vital statistics as those relating to births, fetal deaths, deaths, or marriages – are admissible if the statistics were reported to a public office pursuant to the requirements of law. This exception to the hearsay rule has long been recognized in Alabama by both statute and rule of court. See, e.g., Ala. Code 1975, § 12-21-101; Ala.R.Civ.P. 44. There are also more specialized Alabama statutes dealing with such reports. See, e.g., Ala. Code 1975, § 22-9A-14 (births and deaths as kept by state or local registrar of vital statistics), § 30-1-13 (county health officer’s record of death). C. Gamble, McElroy’s Alabama Evidence § 267.01 (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 8.3(G) (1990). The term “fetal deaths” as used in this paragraph has the same meaning that it has under Alabama’s vital statistics statutes. See Ala. Code 1975, § 22-9A-1.

Paragraph (10). Absence of public record or entry. It sometimes becomes material to prove that a particular thing does not appear in the records of a public office or agency. In many instances such evidence is offered to show the nonoccurrence or nonexistence of a matter regarding which a record otherwise would regularly have been made and preserved by the public office or agency. Rule 803(10), identical to its federal counterpart, provides for the admissibility of such proof of absence so long as it is offered in one of two forms. The proof may be offered either by a certification meeting the requirements of Ala.R.Evid. 902, or by testimony of a diligent but unsuccessful search for the record, report, statement, data compilation, or entry. This exception is similar to that extended under Ala.R.Evid. 803(7) to evidence regarding the absence of an entry in records relating to regularly conducted business activities.

Evidence as to the absence of a matter from a public office or agency likewise may be admissible under a number of federal statutes. See, e.g., 8 U.S.C. § 1284(b) (1994); 8 U.S.C. § 1360(d) (1994); 42 U.S.C. § 405(c)(3), (4)(B), (4)(C) (1988). Alabama common law precluded the admission of such proof. See Whitman v. Whitman, 253 Ala. 643, 46 So.2d 422 (1950). See also C. Gamble, McElroy’s Alabama Evidence § 269.03 (4th ed. 1991). By subsequent legislation and court rules, however, proof of the absence of a record, at least if such proof is certified, is now admissible. Ala. Code 1975, § 12-21-34; Ala.R.Civ.P. 44.

Paragraph (11). Records of religious organizations. After the adoption of these rules of evidence, records of activities of religious organizations could be admissible as business records if they meet the requirements of Ala.R.Evid. 803(6). Rule 803(11), however, recognizes a specialized exception for such records. The breadth of this exception includes statements regarding “facts of personal or family history.” Rule 803(11) expands upon preexisting rules and statutes under which such records are admissible, at least as they regard marriages, births, and deaths. See Ala. Code 1975, § 12-21-101 (superseded in civil cases by Ala.R.Civ.P. 44); § 30-1-7(b).

Paragraph (12). Marriage, baptismal, and similar certificates. Religious and public officials, as well as others, are authorized, either by the rules or practices of a religious organization or by law, to perform certain acts. Marriage and baptismal ceremonies are illustrative examples of such acts. Rule 803(12), identical to its federal counterpart, provides for the admissibility, over a hearsay objection, of an authorized individual’s certificate that such an act was performed. The certificate must purport to have been issued at the time the act was performed or within a reasonable time thereafter.

If the person performing the act is a public official, then the person’s statements may be admissible under Ala.R.Evid. 803(8), if self-authentication is established as prescribed in Ala.R.Evid. 902. Consequently, this Rule 803(12) could have limited, duplicative application; as, for example, in the case of a judge who performs a marriage ceremony. The field of application for Rule 803(12), however, is much broader and extends to certification by clergymen and the like who perform marriages and other ceremonies or administer sacraments. This would include, beyond marriages, baptisms and confirmations. See Fed.R.Evid. 803(12) advisory committee’s note.

If the person executing the certificate is not a public official, then the self-authentication principles found in Ala.R.Evid. 902 would not apply; in such a case the party offering the certificate must lay a predicate establishing that the person was authorized to make, and did in fact make, the certificate at the prescribed time. Once such authority and authenticity have been established, the time element may safely be held to be supplied by the certificate itself, particularly in light of the presumption that a document was executed on the date stated therein. See Fed.R.Evid. 803(12) advisory committee’s note.

A provision similar to that of Rule 803(12) is found in Ala. Code 1975, § 30-1-13. Unlike Rule 803(12), however, this statute expressly applies only to marriages and it requires that a qualifying certificate have been filed with the judge of probate within one month after the marriage is solemnized.

Paragraph (13). Family records. This paragraph is identical to its federal counterpart. Statements of fact regarding family history, such as are subject to this rule, have historically been granted admissibility over hearsay objection, under both state and federal law. On occasion the statement is found in a family Bible. See 20 C.F.R. § 404.703(c) (Social Security regulation regarding proof of age by entry in family Bible); Brown v. State, 247 Ala. 288, 24 So.2d 223 (1945). See C. Gamble, McElroy’s Alabama Evidence § 250.03(3) (4th ed. 1991); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 8-9 (1987). In other cases, the courts have admitted evidence of inscriptions on tombstones. Boyett v. State, 130 Ala. 77, 30 So. 475 (1901). See C. Gamble, McElroy’s Alabama Evidence § 250.03(2) (4th ed. 1991). Rule 803(13) broadens the scope of this common law doctrine to include “genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.”

This Rule 803(13) exception contemplates that the genealogy, chart, inscription, or other entry of family or personal history will have been recorded in the ordinary course of the family’s life. Entries made in preparation for trial would not be admissible under this exception.

Paragraph (14). Records of documents affecting an interest in property. This paragraph, identical to its federal counterpart, embodies a long-standing policy toward the admissibility of title documents that have been recorded in compliance with statutes that authorize the filing of such documents in a prescribed public office. Compare Ala.R.Civ.P. 44; Ala. Code 1975, §§ 12-21-96 through -99. The record of such a document is admissible as proof of both the contents of the original recorded document and its execution and delivery by each person by whom it purports to have been executed. To be admissible under this exception, the record, of course, must satisfy the requirements of the statute authorizing its recordation. See Fed.R.Evid. 803(14) advisory committee’s note.

Paragraph (15). Statements in documents affecting an interest in property. Recitals of fact are often contained in dispositive documents dealing with an interest in property. An example is a statement in a deed reciting that the grantors are all heirs of the last owner of record. Rule 803(15) exempts such statements from the hearsay rule. The circumstances under which such documents are executed, when combined with the requirement that the statement be relevant to the purpose of the document, are believed to furnish the requisite trustworthiness. By the terms of Rule 803(15), the judge may hold this exception inapplicable, resulting in inadmissibility, if “dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.” See Fed.R.Evid. 803(15) advisory committee’s note.

This exception is limited to documents that are dispositive of the title to property, such as deeds, mortgages, wills, etc.

Application of this exception does not necessarily result in carte blanche admissibility of the document. Those statements irrelevant to the purpose of the document, for example, would not be admissible, under this exception, over a hearsay objection. Additionally, other nonhearsay objections may be appropriately raised against the admissibility of such documents.

Some Alabama statutes authorize the admissibility of statements in documents affecting ownership of, or an interest in, land. Affidavits relating to ownership of land, for example, are statutorily admissible to prove the truth of the matter asserted. Ala. Code 1975, § 35-4-69. By the statute, such affidavits, however, are not admissible unless the affiant is deceased; a nonresident; one whose residency is unknown to the party offering the affidavit; or is too old, infirm, or sick to attend court. Ala. Code 1975, § 35-4-70 (superseded by this rule). See C. Gamble, McElroy’s Alabama Evidence § 260.02 (4th ed. 1991).

Paragraph (16). Statements in ancient documents. This rule adopts the “ancient documents exception,” long recognized by the common law of hearsay. Unlike the corresponding federal rule, which adopts a twenty-year period, this Alabama rule adopts thirty years as the age required to establish the reliability that supports this exception to the hearsay rule. See Fed.R.Evid. 803(16). Even if exempted from the hearsay ban, however, such a document must be authenticated in compliance with Ala.R.Evid. 901(b)(8).

Pre-existing Alabama law recognized an exception for ancient documents. See Stewart v. Peabody, 280 Ala. 5, 189 So.2d 554 (1966). See also C. Gamble, McElroy’s Alabama Evidence § 321.01 (4th ed. 1991). Rule 803(16) differs from the preexisting law, however, by abandoning any requirement that the document be without a suspicious appearance. See McMillan v. Aiken, 205 Ala. 35, 88 So. 135 (1920). The requirement that the document have a nonsuspicious appearance continues, but is now part of the authentication requirements. See Ala.R.Evid. 901(b)(8).

Paragraph (17). Market reports, commercial publications. This exception, identical to its counterpart under the Federal Rules of Evidence, provides for the admissibility of certain commercial publications. See Fed.R.Evid. 803(17). The indicia of reliability underlying the exception are the motivation of compilers to publish accurate reports and the reliance upon such reports by either the public generally or those in a particular occupation. Qualifying commercial publications include, among others, newspaper market reports, telephone directories, and city directories. See 6 J. Wigmore, Wigmore on Evidence §§ 1702-1706 (Chadbourn Rev. 1976).

This exception is consistent with similar preexisting Alabama principles. A statute, for example, recognizes the admissibility of

“[p]rice current and commercial lists, printed at any commercial mart, [as] presumptive evidence of the value of any article of merchandise specified therein, at that place, at the date thereof and of the rate of exchange between that and other places, also of the rates of insurance, freights and the times of arrival and departure of ships and other vessels.” Ala. Code 1975, § 12-21-113; C. Gamble, McElroy’s Alabama Evidence § 259.03 (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 8.3(1) (1990). Additionally, a section of Alabama’s version of the Uniform Commercial Code recognizes the admissibility, when offered to prove the prevailing price or value of goods bought and sold in any established commodity market, of reports appearing in official publications, trade journals, newspapers, or periodicals of general circulation. Ala. Code 1975, § 7-2-724.

Paragraph (18). Learned treatises. Alabama has long been in the minority of jurisdictions in permitting the admissibility of learned treatises as substantive evidence in the case. Seaboard Sys. R.R. v. Page, 485 So.2d 326 (Ala.1986). See Comment, Learned Treatises As Direct Evidence: The Alabama Experience, 1967 Duke L.J. 1169; C. Gamble, McElroy’s Alabama Evidence § 258.01 (4th ed. 1991). Most jurisdictions, in contrast, have relegated the use of such treatises to the cross-examination of experts or to showing the basis for the expert’s opinion. See Brown v. United States, 419 F.2d 337, 341 (8th Cir. 1969); 6 J. Wigmore, Wigmore on Evidence §§ 1609-1708 (Chadbourn Rev. 1976). Such treatises are held relevant to the weight or credibility the trier of fact is to give to the expert’s testimony but not to constitute substantive evidence of the matter asserted in the treatise. See E. Cleary, McCormick on Evidence § 322 (3d ed. 1984).

Rule 803(18), identical to its federal counterpart, adopts Alabama’s minority position, by which learned treatises constitute direct, substantive evidence of the relevant matter therein and, thereby, fall within their own exception to the hearsay rule of exclusion. Because of the inherent reliability of such works, they are now admissible to prove the truth of the matter asserted therein. This fact, of course, does not preclude the continued admission of such treatises as going to the weight or credibility of the expert’s testimony.

The scope of this exception includes statements in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art. Aside from the limits established by the foregoing statement of scope, two conditions must be satisfied before such statements are admissible. First, the treatise, periodical, or pamphlet must be established as reliable authority, usually meaning that the author’s expertise is recognized in the field and that other professionals acknowledge the accuracy of the publication. Reliability in the field may be established by the admission of the expert who is being questioned about the publication, through other expert testimony, or by judicial notice. See Baenitz v. Ladd, 363 F.2d 969, 970 (D.C.App.1966) (judicial notice of material found in Encyclopedia Britannica); Ala.R.Evid. 201 (judicial notice). Compare C. Gamble, McElroy’s Alabama Evidence § 258.02 (4th ed. 1991) (judicial notice of material in dictionaries). The second condition is that the person offering the publication must show either that the publication was relied upon by the expert during direct examination or was called to the expert’s attention on cross-examination. This second requirement, in the words of one author, is “designed to ensure that the materials are used only under the chaperonage of an expert to assist and explain in applying them.” E. Cleary, McCormick on Evidence § 321, at 901 (3d ed. 1984). See C. Gamble, McElroy’s Alabama Evidence § 258.01(3) (4th ed. 1991) (describing preexisting Alabama law as being that an expert witness either must have relied upon the treatise during direct examination or must have been confronted with it on cross-examination). Contrary to preexisting Alabama law, which allowed the treatise to be introduced, Rule 803(18) only permits the treatise statements to be read into evidence. Contra Harrison v. Wientjes, 466 So.2d 125 (Ala.1985).

Paragraph (19). Reputation concerning personal or family history. In a number of instances, throughout these rules and under preexisting Alabama law, witnesses are allowed to give testimony relating to reputation. Rule 803(19) recognizes the admissibility of such evidence when it relates to personal and family history. Under Rule 803(19), which is identical to its federal counterpart, the reputation as to which a witness may testify is measured among one’s family (whether by blood, adoption, or marriage), among one’s associates, or in the community. This concept, regarding the setting of the reputation, is subject to expansion and may include a neighborhood, workplace, religious group, or a social activity. See Fed.R.Evid. 803(19) advisory committee’s note. To qualify as admissible under this exception, a statement must relate to reputation concerning a person’s “birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact” related to one’s personal or family history.

Alabama law has long recognized the admissibility of general reputation among members of a family when offered to show the family history or pedigree of a member or a claimed member of the family. Mostilla v. Ash, 234 Ala. 626, 176 So. 356 (1937) (reputation in family to prove common law marriage); C. Gamble, McElroy’s Alabama Evidence § 250.04 (4th ed. 1991). Reputation in the community, as to one’s family history, likewise has been admitted under preexisting Alabama law. See C. Gamble, McElroy’s Alabama Evidence § 250.04 (4th ed. 1991).

Rule 803(19) does not change those foundation requirements that must precede any witness’s testimony as to another’s reputation. The witness, for example, must be shown to possess sufficient knowledge of the family, the associates, or the community in order to testify as to a reputation within that group. Marasso v. State, 18 Ala.App. 488, 93 So. 226 (1922). See C. Gamble, McElroy’s Alabama Evidence § 26.02(10) (4th ed. 1991).

Paragraph (20). Reputation concerning boundaries or general history. This paragraph is identical to its federal counterpart. The first portion of this exception exempts from hearsay objection community reputation concerning boundaries of, or customs affecting, lands in the community. Such reputation is inadmissible if it arises subsequent to the controversy to which it is related. This exception to the hearsay rule, at least as it regards reputation concerning boundary lines, is consistent with historic Alabama law. See Lilly v. Palmer, 495 So.2d 522 (Ala.1986); C. Gamble, McElroy’s Alabama Evidence § 257.01 (4th ed. 1991).

The second portion of this exception authorizes the admission of reputation as to events of general history that are important to the community, the state, or the nation. Unlike that dealt with in the first portion of this exception, this particular reputation evidence is exempt from any requirement that the reputation antedate the controversy with regard to which the reputation is offered. See Fed.R.Evid. 803(20) advisory committee’s note.

Paragraph (21). Reputation as to character. This paragraph, identical to its federal counterpart, exempts from the hearsay ban proof of character the admissibility of which is authorized elsewhere in these rules. See Ala.R.Evid. 404(a). A criminal defendant, for example, may present evidence of his or her good character, from which the factfinder may infer that the defendant did not commit the crime charged. See Ala.R.Evid. 404(a)(1). The medium through which to prove such good character is reputation. Ala.R.Evid. 405(a). Because a criminal defendant’s reputation is composed of what is being said regarding the defendant, a hearsay exception like this one is necessary to accommodate evidence of what is being said.

This exception also allows proof of character for impeachment of witnesses. See Ala.R.Evid. 404(a)(3). A primary medium for proving lack of credibility is evidence of a general reputation for not telling the truth. Ala.R.Evid. 608(a). This exception allows such proof over a hearsay objection.

Rule 803(21) conforms with preexisting Alabama practice. Use of the phrase “among associates,” for example, makes it clear that this rule is consistent with prior Alabama decisions expanding the definition of the term “community.” See Steele v. State, 389 So.2d 591 (Ala.Crim.App.1980) (holding that one’s school may qualify as a community). See also C. Gamble, McElroy’s Alabama Evidence § 26.02(5) (4th ed. 1991).

Paragraph (22). Judgment of previous conviction. A recurring issue involves the admissibility of a former judgment of conviction as evidence in proof of a material issue in a present trial. Rule 803(22), with certain limitations, prevents the exclusion of such a judgment based upon a hearsay objection. The basis for this exception lies in the belief that the criminal justice system guarantees the reliability of criminal convictions through the high burden of proof imposed by the criminal law and the tendency of an accused to defend vigorously against a charge of serious criminal conduct. See E. Cleary, McCormick on Evidence § 328, at 739 (3d ed. 1984). Such an exception, with several differences, exists under preexisting Alabama law. See Cups Coal Co. v. Tennessee River Pulp & Paper Co., 519 So.2d 932 (Ala.1988). See also C. Gamble, McElroy’s Alabama Evidence § 269.05 (4th ed. 1991); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 8-15 (1987).

The present rule recognizes only the admissibility of convictions for felony-grade crimes -- i.e., those crimes punishable by death or imprisonment in excess of one year. See Ala.R.Evid. 609(a)(1) (establishing the same felony-grade requirement as one of the two tests determining which criminal convictions may be used to impeach a witness). This is inconsistent with some authority in Alabama that calls for the admissibility of even misdemeanor convictions. See Durham v. Farabee, 481 So.2d 885 (Ala.1985). The theory underlying this exclusion of convictions for misdemeanor offenses is that the motivation to defend against misdemeanor charges is minimal. See Fed.R.Evid. 803(22) advisory committee’s note; W. Shipley, Annotation, Conviction or Acquittal as Evidence of the Facts on Which it Was Based in Civil Action, 18 A.L.R.2d 1287, 1295-97 (1951).

Only convictions based upon a trial or a guilty plea will qualify under this hearsay exception. This necessarily means, consistent with former Alabama practice, that a judgment based upon a nolo contendere plea will not qualify. See May v. Lingo, 277 Ala. 92, 167 So.2d 267 (1964). Compare Ala.R.Evid. 410.

Rule 803(22) provides that the fact that a conviction is pending on appeal goes to the weight of the evidence but not to its admissibility. Stated differently, the conviction is admissible under this rule even though it is on appeal. The fact that it is on appeal may be shown by the party against whom the evidence of the conviction is offered. Historic Alabama law, on the other hand, has excluded such a conviction offered while it is on appeal. See, e.g., Cups Coal Co. v. Tennessee River Pulp & Paper Co., 519 So.2d 932 (Ala.1988); Fidelity-Phenix Fire Ins. Co. v. Murphy, 226 Ala. 226, 146 So. 387 (1933). Even though the fact that the conviction is on appeal does not preclude admission, the party against whom the conviction is admitted may explain the circumstances of the conviction as going to the weight to be given to the conviction. See Durham v. Farabee, 481 So.2d 885 (Ala.1985); North River Ins. Co. v. Militello, 104 Colo. 28, 88 P.2d 567 (1939).

As with other hearsay exceptions, Rule 803(22) generally does not undertake to resolve constitutional issues. To avoid conflict with constitutional rights, however, this exception does not make admissible the convictions of persons other than the accused when such convictions are offered by the state or other governmental authority in a criminal prosecution as evidence of any fact essential to sustain the judgment. See Fed.R.Evid. 803(22) advisory committee’s note. Such convictions would be admissible, however, if offered to impeach. Compare Ala.R.Evid. 609.

Paragraph (23). Judgment as to personal, family, or general history, or boundaries. At common law, and now under Ala.R.Evid. 803(19) or (20), reputation evidence is admissible over a hearsay objection when related to personal or family history, boundaries, or general history. As a corollary to this hearsay exception, judgments as to these same matters were admitted at common law as manifestations of such reputation. See 5 J. Wigmore, Wigmore on Evidence § 1593 (Chadbourn Rev. 1974). Such judgments are now given their own exception to the hearsay rule. However, these judgments are admissible only in those instances where evidence of reputation would be admitted under Rule 803(19) or Rule 803(20). See Grant Bros. Constr. Co. v. United States, 232 U.S. 647 (1914); Patterson v. Gaines, 47 U.S. (6 How.) 550, 599 (1848).

Paragraph (24). Absence of residual or catchall exception. It should be noted that these rules do not include what is known as a “residual” or “catchall” exception to the hearsay rule. See Fed.R.Evid. 803(24). The committee expresses no position as to whether the Alabama Supreme Court may expand the number of hearsay exceptions by decision. See Dallas County v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961). However, the committee believes that any expansion in the number of hearsay exceptions generally should be accomplished, rather than on a case-by-case basis, by the Alabama Supreme Court’s acting under its authority to prescribe rules of practice and procedure. Nothing in these rules, of course, limits any authority in the Alabama Legislature to enact exceptions to the hearsay rule. See Ala.R.Evid. 802.

Advisory Committee’s Notes to Amendment to Rule 803(6) Effective October 1, 2013

Rule 803(6) has been amended to keep this rule consistent with its federal counterpart, which was amended in 2000. The amendment provides that the foundation requirements of Rule 803(6) can be satisfied under certain circumstances without the expense and inconvenience of producing time-consuming foundation witnesses. This represents a change from pre-rules caselaw and the former Rule 803(6), in which Alabama courts generally required foundation witnesses to testify. Protections are provided by the authentication requirements of Rule 902(11) for domestic records and Rule 902(12) for foreign records.

The intent behind this amendment, combined with the addition of Rule 902(11) and (12), is to provide a means to satisfy the foundational elements of this hearsay exception without a live witness. The amendment is not intended to give these records carte blanche admissibility. With the addition of this amendment, the adoption of Rule 902(11) and (12), and previously existing Rule 1001(2) and (3), the proponent of the evidence may now overcome authentication, hearsay, and best-evidence-rule objections with a properly certified copy of a record of regularly conducted activity, but all other valid objections remain. Thus, even if the proponent of the evidence satisfies the requirements of this amendment, the evidence may still be excluded under applicable general rules of evidence. See 2 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 254.01(7)(a) (6th ed. 2009) (recognizing that ”successfully satisfying all the elements of the business records exception does not guarantee what the courts term ’carte blanche’ admissibility”). By way of example, a record of regularly conducted activity that contains multiple levels of hearsay may still properly be excluded if the proponent does not overcome objections for each level of hearsay. See 2 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 254.01(7)(d) (6th ed. 2009).

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 804. Hearsay exceptions; declarant unavailable.

(a)   Grounds of unavailability. “Unavailability as a witness” includes situations in which the declarant –

(1)   is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or

(2)   persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or

(3)   now possesses a lack of memory of the subject matter of the declarant’s statement; or

(4)   is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or

(5)   is absent from the hearing and the proponent of the statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subsection (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

(b)   Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1)   FORMER TESTIMONY. Testimony of a witness, in a former trial or action, given (A) under oath, (B) before a tribunal or officer having by law the authority to take testimony and legally requiring an opportunity for cross-examination, (C) under circumstances affording the party against whom the witness was offered an opportunity to test his or her credibility by cross-examination, and (D) in litigation in which the issues and parties were substantially the same as in the present cause.

(2)   STATEMENT UNDER BELIEF OF IMPENDING DEATH. A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death.

(3)   STATEMENT AGAINST INTEREST. A statement which was at the time of its making so contrary to the declarant’s pecuniary or proprietary interest that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.

(4)   STATEMENT OF PERSONAL OR FAMILY HISTORY. (A) A statement concerning the declarant’s own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.

(5)   FORFEITURE BY WRONGDOING. A statement offered against a party that has engaged in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

[Amended 8-15-2013, eff. 10-1-2013.]

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Section (a). Grounds of unavailability. Section (a) is patterned after the corresponding federal rule. It gives five grounds of “unavailability.” Each of the four exceptions found in Rule 804(b) carries a condition precedent that the declarant be “unavailable.” This is the threshold distinction between Rule 804(b) exceptions and those found in Rule 803.

Assertion of a privilege. Whenever a court-approved assertion of privilege precludes a declarant/witness from relating the subject matter of the witness’s own statement, the witness is then “unavailable” for the purpose of activating the Rule 804(b) exceptions. This ground of “unavailability” is consistent with traditional Alabama practice. See Miles v. State, 476 So.2d 1228 (Ala.Crim.App.1985); Wyatt v. State, 35 Ala.App. 147, 46 So.2d 837, cert. denied, 254 Ala. 74, 46 So.2d 847 (1950). See also C. Gamble, McElroy’s Alabama Evidence § 245.07(8) (4th ed. 1991).

Refusal to testify. Even in the face of judicial pressure, some witnesses stand by their refusal to testify. A refusal to testify as to the subject matter of the declarant/witness’s statement, in face of a court order to do so, constitutes “unavailability” for the purpose of activating the exceptions of Rule 804(b). Alabama has little preexisting authority dealing with whether a refusal to testify equates with unavailability. Adopting the principle that it does, however, is fully consistent with the modern trend in the United States as a whole. See United States v. Gonzalez, 559 F.2d 1271, 1272-73 (5th Cir.1977); E. Cleary, McCormick on Evidence § 249.01(2) (3d ed. 1984).

Lack of memory. A declarant/witness’s lack of memory concerning the subject matter of his or her statement satisfies the unavailability requirement of the Rule 804(b) exceptions. The witness’s own testimony will be offered to establish the lack of memory. Thus, the committee envisions that the witness will be produced and subjected to cross-examination. It was stated in House Comm. on Judiciary, Fed. Rules of Evidence, H.R. Rep. No. 650, 93d Cong., 1st Sess., 15 (1973): “[T]he Committee intends no change in existing federal law under which the court may choose to disbelieve the declarant’s testimony as to his lack of memory. See United States v. Insana, 423 F.2d 1165, 1169-1170 (2nd Cir.), cert. denied, 400 U.S. 841 (1970).” While this ground of “unavailability” has no counterpart under preexisting Alabama law, it is fully consistent with the national trend. See M.A.L., Annotation, Admissibility of Testimony of Witness at Former Trial or in Another Case to Cover Gaps or Omissions, Due to Faulty Memory or Other Causes, in His Present Testimony Given in Person or by Deposition, 129 A.L.R. 843 (1940).

Death or physical or mental illness or infirmity. Unavailability, as a prerequisite for the admission of a declarant’s statement under the Rule 804(b) exceptions, has long been held to be satisfied by death. See Hill v. State, 455 So.2d 930 (Ala.Crim.App.), aff’d, 455 So.2d 938 (Ala.), cert. denied, 469 U.S. 1098 (1984); Barfield v. Evans, 187 Ala. 579, 65 So. 928 (1914); Mattox v. United States, 156 U.S. 237 (1895). See also C. Gamble, McElroy’s Alabama Evidence §§ 245.07(8), 249.01(2) (4th ed. 1991). Additionally, traditional evidence law has recognized physical or mental illness or infirmity as making a hearsay declarant unavailable. See Howard v. State, 49 Ala.App. 548, 274 So.2d 104 (1973) (physical illness); Marler v. State, 67 Ala. 55 (1880) (insanity). Compare Ala.R.Civ.P. 32(a)(3) (dealing with the unavailability requirement as a condition for using at trial a person’s deposition).

Absence. As under preexisting Alabama common law, a declarant is not rendered unavailable by absence alone. Beyond the fact that the declarant is absent from the hearing, the proponent of the statement must show an inability to procure the declarant’s attendance by either legal process or other reasonable means. Williams v. Calloway, 281 Ala. 249, 201 So.2d 506 (1967) (unavailability established by a showing of permanent or indefinite absence from Alabama); Pope v. State, 183 Ala. 61, 63 So. 71 (1913) (diligent search fails to find declarant). “Reasonable means” may include in some cases, but not all, an attempt to take the declarant’s deposition.

Absence that is procured by the proponent of the statement does not satisfy the requirement of unavailability. McCoy v. State, 221 Ala. 466, 129 So. 21 (1930). See C. Gamble, McElroy’s Alabama Evidence § 245.07(8) (4th ed. 1991).

A proponent of a statement who attempts to prove the declarant’s absence must show that he or she took reasonable steps to secure the deposition of the declarant, if the statement was a statement made under a belief of impending death, a statement against interest, or a statement concerning personal or family history. No such showing is required to establish absence for activation of the “former testimony” exception. As stated in House Comm. on Judiciary, Fed. Rules of Evidence, H.R. Rep. No. 650, 93d Cong., 1st Sess., 15 (1973):

“Rule 804(a)(5) as submitted to the Congress provided, as one type of situation in which a declarant would be deemed ‘unavailable,’ that he be ‘absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.’ The Committee amended the Rule to insert after the word ‘attendance’ the parenthetical expression ‘(or, in the case of a hearsay exception under subdivision (b)(2),(3), or (4), his attendance or testimony).’ The amendment is designed primarily to require that an attempt be made to depose a witness (as well as to seek his attendance) as a precondition to the witness being deemed unavailable. The Committee, however, recognized the propriety of an exception to this additional requirement when it is the declarant’s former testimony that is sought to be admitted under subdivision (b)(1).”

As a general safety clause, Rule 804(a) provides that none of the stated grounds of unavailability suffices when the unavailability has been brought about by improper actions of the party offering the statement. Unavailability is not present where the declarant’s exemption, refusal, lack of memory, inability, or absence is due to the proponent’s procurement or wrongdoing. This principle has been long recognized in Alabama law. See McCoy v. State, 221 Ala. 466, 129 So. 21 (1930).

Subsection 804(b)(1). Former testimony. This subsection is taken almost verbatim from language continually quoted by Alabama courts. See, e.g., Jones v. State, 603 So.2d 419, 421 (Ala.Crim.App.1992); Henderson v. State, 598 So.2d 1045, 1049 (Ala.Crim.App.1992); Nolen v. State, 469 So.2d 1326 (Ala.Crim.App.985); Williams v. State, 375 So.2d 1257, 1269 (Ala.Crim.App.), cert. denied, 375 So.2d 1271 (Ala.1979). See also C. Gamble, McElroy’s Alabama Evidence § 245.07(1) (4th ed. 1991). It is intended as a restatement of preexisting Alabama law with regard to the “former testimony” exception to the hearsay rule except that, of course, Rule 804(a) liberalizes the grounds of unavailability. See Ala.R.Evid. 804(a).

It is not absolutely required that a civil party against whom the former testimony is offered have been a party to the prior proceeding. It is sufficient if that party is in privity with, or is a successor of, a former party. See Julian v. Woolbert, 202 Ala. 530, 81 So. 32 (1919); Long v. Davis, 18 Ala. 801 (1851). See also C. Gamble, McElroy’s Alabama Evidence § 245.07(7) (4th ed. 1991). The term “privity” is left to be defined by the common law. However, the committee intends that the result on the privity issue reached in Clay v. Johns-Manville Sales Corp., 722 F.2d 1289 (6th Cir.1983), cert. denied, 467 U.S. 1253 (1984), be rejected.

Subsection 804(b)(2). Statement under belief of impending death. This is an expanded version of the historic “dying declaration” exception to the hearsay rule. Under this rule, as under preexisting Alabama law, however, this exception does not apply in civil cases. See O’Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 168 So. 580 (1936). See also C. Gamble, McElroy’s Alabama Evidence § 248.01(2) (4th ed. 1991). Under the common law of Alabama, the dying declaration exception applied only in criminal cases in which the death of the declarant served as the basis of the prosecution. Application of this traditional requirement had the peculiar result of excluding the dying declaration of A in a prosecution for the death of B when both were killed in the same affray with the accused. See Allsupp v. State, 15 Ala.App. 121, 72 So. 599 (1916). Rule 804(b)(2), on the other hand, applies in all criminal cases.

The threshold requirement for the dying declaration at common law was that the declarant must have actually died. Under the Rule 804(b)(2) version of the exception, however, the declarant need only be “unavailable,” within the meaning of Rule 804(a). This fact results in the possibility that one could make a dying declaration that would be admissible despite the fact that the declarant has not died. Indeed, Rule 804(b)(2) now labels the present exception as “statement under belief of impending death” rather than “dying declaration.”

The basic requirement for all dying declarations, whether offered under historic common law or under the present rule, is that the declarant must have believed that death was certain and imminent. This belief is to be determined from the objective facts surrounding the making of the statement. In this regard, preexisting Alabama case law continues with regard to the relevant factors that go to furnish such a belief. See Voudrie v. State, 387 So.2d 248 (Ala.Crim.App.), cert. denied, 387 So.2d 256 (Ala.1980). See also C. Gamble, McElroy’s Alabama Evidence § 248.01(1) (4th ed. 1991).

Rule 804(b)(2), like the pre-rules cases stating the dying declaration exception, limits the exception to statements that relate to the cause or circumstances of what the declarant believed to be the declarant’s impending death. See Hayes v. State, 395 So.2d 127 (Ala.Crim.App.1980), cert. denied, 395 So.2d 150 (Ala.1981). A statement qualifies under this exception, even if in the form of an opinion, so long as it satisfies Ala.R.Evid. 701. Compare Sidney v. State, 265 Ala. 136, 89 So.2d 745 (1956). The firsthand knowledge rule, found in Ala.R.Evid. 602, continues to be applied to the declarations made admissible by Rule 804(b)(2).

Subsection 804(b)(3). Statement against interest. This subsection acknowledges the admissibility of a statement that was, at the time the statement was made, against the pecuniary or proprietary interest of the declarant. Rule 804(b)(3) is no more than a restatement of the preexisting common law exception to the hearsay rule. See Lavett v. Lavett, 414 So.2d 907 (Ala.1982), overruled by McBride v. McBride, 548 So.2d 155 (Ala.1989). See also C. Gamble, McElroy’s Alabama Evidence § 249.01(1) (4th ed. 1991). The declarant must be “unavailable” at the time the statement is offered. The grounds of “unavailability” have undergone dramatic expansion. See Ala.R.Evid. 804(a). If the statement is that of a party, and if it is offered against the party by the opponent, then it qualifies as an admission and carries no requirement of being against interest at the time that it was made. See Ala.R.Evid. 801(d)(2).

Rule 804(b)(3) is not intended to negate prior Alabama case law excluding exculpatory statements of third persons offered by the accused in a criminal case. See Flowers v. State, 586 So.2d 978 (Ala.Crim.App.), cert. denied, 596 So.2d 954 (Ala.1991), cert. denied, 504 U.S. 930 (1992); Garrison v. State, 416 So.2d 793 (Ala.Crim.App.1982); C. Gamble, McElroy’s Alabama Evidence § 249.02 (4th ed. 1991).

The essence of the exception continues to be that the statement was against the interest of the declarant at the time the statement was made. In determining whether the facts satisfy the against-interest requirement, the judge considers the declarant to have the traits of a reasonable person. This is consistent with traditional Alabama law. See McCord v. State, 220 Ala. 466, 126 So. 873 (1930).

Subsection 804(b)(4). Statement of personal or family history. Statements regarding the declarant’s own personal or family history – e.g., birth, adoption, marriage, divorce, legitimacy, relationship by blood, ancestry, or other similar fact of personal or family history – are exempted from the hearsay rule of exclusion by Rule 804(b)(4)(A). Like its predecessor at common law, this exception carries the requirement that the declarant be unavailable at the time the statement is offered. See Landers v. Hayes, 196 Ala. 533, 72 So. 106 (1916); C. Gamble, McElroy’s Alabama Evidence § 250.01 (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 8.4(d) (1987). Any requirement that the declarant have had personal knowledge of the matters contained in the statement is expressly inapplicable. See Martin v. State, 17 Ala.App. 73, 81 So. 851 (1919).

Under (B), statements regarding matters of another person’s personal or family history, including death, are admissible. If the person being spoken about is a member of the declarant’s family, whether by blood or adoption or marriage, then admission of the statement is consistent with prior Alabama practice. See Chambers v. Morris, 159 Ala. 606, 48 So. 687 (1909); C. Gamble, McElroy’s Alabama Evidence § 250.02 (4th ed. 1991). However, this Rule 804(b)(4)(B) exception, unlike the related exception recognized by the preexisting common law, encompasses such statements about one to whom the declarant is not related but with whose family the declarant is intimately associated.

Subsection 804(b)(5). Absence of residual or catchall exception. It should be noted that Rule 804(b), unlike the corresponding federal rule, contains no residual or catchall exception. See Fed.R.Evid. 804(b)(5). See also Ala.R.Evid. 803(24) advisory committee’s notes.

Advisory Committee’s Notes to Amendment to Rule 804(b) Effective October 1, 2013

Rule 804(b)(2) is amended to allow its use in civil and criminal cases. Because the historical basis for allowing this exception is the psychological motivation that a belief in impending death enhances the credibility of the declarant’s statement, there is no rational basis for differentiating between criminal or civil actions.

Rule 804(b)(5) has been added to provide that a party forfeits the right to object on hearsay grounds to the admission of a declarant’s prior statement when the party’s deliberate wrongdoing procured the unavailability of the declarant as a witness. This exception recognizes the need for a prophylactic rule to deal with abhorrent behavior ”which strikes at the heart of the system of justice itself.” United States v. Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982). This rule applies to all parties, including the government.

Alabama’s Rule 804(b)(5) represents a slight departure from its federal counterpart, Fed. R. Evid. 804(b)(6), which was added by amendment in 1997. Federal Rule 804(b)(6) provides a hearsay exception for statements by unavailable witnesses when the party against whom the statement is offered ”caused -- or acquiesced in wrongfully causing -- the declarant’s unavailability as a witness, and did so intending that result.” Alabama’s Rule 804(b)(5) rejects the phrase “or acquiesced” due to its breadth. This departure from the federal model is not intended to limit the court’s ability to interpret the breadth of the term “engaged in wrongdoing,” although it is intended to exclude situations in which a party’s mere inaction might otherwise be held to effect a forfeiture.

It is left to the courts to interpret when “wrongdoing” has occurred. See, e.g., United States v. White, 116 F.3d 903, 916 (D.C. Cir. 1997) (holding that two defendants who murdered a potential witness forfeited their confrontation and hearsay objections to statements of that witness); United States v. Dhina, 243 F.3d 635, 644-45 (2d Cir. 2001) (applying exception when defendant ordered others to kill witnesses, supplied weapons in one killing, and personally participated in another); and United States v. Potamitis, 739 F.2d 784, 788-89 (2d Cir. 1984) (admitting grand-jury testimony of witness who fled country after being threatened by the defendant). The wrongdoing need not consist of a criminal act. Compare United States v. Scott, 284 F.3d 758, 764 (7th Cir. 2002) (”applying pressure on a potential witness not to testify, including by threats of harm and suggestions of future retribution, is wrongdoing”), with Commonwealth v. Edwards, 444 Mass. 426, 541 n. 23, 830 N.E.2d 158, 171 n.23 (2005) (putting forth the idea to avoid testifying by use of threats, coercion, persuasion, or pressure may be sufficient to constitute forfeiture, but merely informing a witness of their right to remain silent does not constitute pressure or persuasion).

The intent requirement of Ala. R. Evid. 804(b)(5) ”means that the exception applies only if the defendant has in mind the particular purpose of making the witness unavailable.” Giles v. California, 554 U.S. 353, 367 (2008) (interpreting Fed. R. Evid. 804(b)(6)).

In determining whether there is a forfeiture, the usual Rule 104(a) preponderance-of-the-evidence standard has been adopted (rather than a clear-and-convincing-evidence standard) in light of the behavior Rule 804(b)(5) seeks to discourage. See Davis v. Washington, 547 U.S. 813, 833 (2006) (observing that federal courts applying Fed. R. Evid 804(b)(6) have generally held the Government to the preponderance-of-the-evidence standard); United States v. Zlatogur, 271 F.3d 1025, 1028 (11th Cir. 2001) (adopting the preponderance-of-the-evidence standard for determining whether to admit hearsay under Fed. R. Evid. 804(b)(6)).

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 805. Hearsay within hearsay.

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

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Instances arise in which an out-of-court statement by one declarant contains a statement made by yet another declarant. Such instances are variously termed “hearsay within hearsay,” “totem pole hearsay,” or “multiple hearsay.” A may take the stand, for example, to tell what B said C had said. The fact that one statement qualifies as coming within a hearsay exception does not necessarily ensure that the other statement so qualifies. Rule 805 sets out the analysis that is to be applied to whether such multiple hearsay is admissible. Each declarant’s statement, considered individually, must satisfy the hearsay concern by either qualifying under a hearsay exception or being, by definition, nonhearsay. Suppose, for example, that the declarant, in an offered statement made under belief of impending death, states what another person was heard to say at the scene of a crime. The declarant’s statement may be admissible under the exception specifically created for such statements under belief of impending death. See Ala.R.Evid. 804(b)(2). However, that portion that reveals the statement of another must, in its own right, be admissible over a hearsay objection; the admissibility could come, for example, under the declaration against interest exception if the declarant is unavailable. See Ala.R.Evid. 804(b)(3). Alternatively, and by way of illustration, the second declarant’s statement could qualify as an excited utterance. See Ala.R.Evid. 803(2).

The multiple hearsay analysis set forth in this rule is consistent with preexisting Alabama authority. This analysis has been applied to business records containing both double and even triple hearsay. See Reeves v. King, 534 So.2d 1107 (Ala.1988). See also C. Gamble, McElroy’s Alabama Evidence § 254.01(2) (4th ed. 1991).

Rule 805 is identical to its federal counterpart.

Rule 806. Attacking and supporting credibility of declarant.

When a hearsay statement, or a statement described in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant must have been confronted with the circumstances of the statement or afforded an opportunity to admit or deny the statement. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

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Some hearsay statements are admitted even if the declarant is unavailable. See Ala.R.Evid. 803. Indeed, some hearsay exceptions require such unavailability. See Ala.R.Evid. 804(b). Even the definition of hearsay, expanded under these Rules of Evidence, categorizes some out-of-court statements as nonhearsay despite the fact that the person who made the statement may not testify. See, e.g., Ala.R.Evid. 801(d)(2)(C), (D), and (E). When such statements of unavailable or nontestifying declarants are admitted, the declarant is just as much a witness against the objecting party as if the declarant were orally testifying. Rule 806 recognizes that unavailable or nontestifying declarants are subject to all the methods of impeachment to which a witness testifying in the courtroom would be subject. See, e.g., Ala.R.Evid. 608(a) (reputation and opinion), Ala.R.Evid. 609 (conviction), Ala.R.Evid. 613 (inconsistent statement), Ala.R.Evid. 616 (bias). The credibility of such hearsay declarants likewise may be supported through the same forms of rehabilitation evidence that could have been used if the declarant had testified as a witness. See Ala.R.Evid. 608(a).

Some forms of impeachment carry threshold requirements that are impossible to satisfy when the declarant is unavailable or never testifies. Impeachment by extrinsic evidence of an inconsistent statement in writing, for example, carries the requirement that the declarant be confronted with the circumstances of the statement and be afforded an opportunity to admit or deny the statement. See Ala.R.Evid. 613(b). Such an opportunity could hardly be extended, for example, to a now unavailable declarant who had made a statement under belief of impending death. Ala.R.Evid. 804(b)(2). Rule 806 stands for the proposition that effective testing of credibility in these instances can be accomplished only if the impeaching party is exempted from the necessity of satisfying such threshold requirements.

Out-of-court statements are admissible under some hearsay exceptions even if the declarant is available but not called by the party who offers the statement. See Ala.R.Evid. 803. After the admission of such a statement, the opposing party may call the declarant as a witness. In such instances, the calling party’s questioning of the witness may be conducted as if on cross-examination.

Alabama case law has long embraced the Rule 806 concept that one may impeach an unavailable hearsay declarant as if that declarant had appeared as a witness in the present trial. Massey v. Reynolds, 213 Ala. 178, 104 So. 494 (1925). See C. Gamble, McElroy’s Alabama Evidence §§ 165.01(4) (stating the general principle), 248.01(12) (dealing with impeachment of a dying declarant) (4th ed. 1991).

Rule 901. Requirement of authentication or identification.

(a)   General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b)   Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1)   TESTIMONY OF WITNESS WITH KNOWLEDGE. Testimony that a matter is what it is claimed to be.

(2)   NONEXPERT OPINION ON HANDWRITING. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3)   COMPARISON BY TRIER OR EXPERT WITNESS. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4)   DISTINCTIVE CHARACTERISTICS AND THE LIKE. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(5)   VOICE IDENTIFICATION. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(6)   TELEPHONE CONVERSATIONS. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

(7)   PUBLIC RECORDS OR REPORTS. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(8)   ANCIENT DOCUMENTS OR DATA COMPILATION. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence thirty years or more at the time it is offered.

(9)   PROCESS OR SYSTEM. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

(10)   METHODS PROVIDED BY STATUTE OR RULE. Any method of authentication or identification provided by statute or by other rules prescribed by the Supreme Court of Alabama.

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Section (a). General provision. Like the preexisting common law, Rule 901 embraces the historic requirement that the proponent of real or demonstrative evidence (all nontestimonial evidence, such as writings, objects, etc.) lay a threshold foundation, as a prerequisite to admissibility, sufficient to show that the evidence is what it is represented to be. This requirement manifests itself in the prerequisite foundation, often called a “chain of custody” requirement, which guarantees the identification of chattels. See Washington v. State, 269 Ala. 146, 112 So.2d 179 (1959); Ex parte Williams, 505 So.2d 1254 (Ala.1987). See also C. Gamble, McElroy’s Alabama Evidence § 319.01 (4th ed. 1991). When a writing is offered as evidence, Rule 901 continues the necessity for laying a foundation to authenticate the document as genuine. See Chrisman v. Brooks, 291 Ala. 237, 279 So.2d 500 (1973); Timmons v. State, 487 So.2d 975 (Ala.Crim.App.1986). See also C. Gamble, McElroy’s Alabama Evidence § 320.01 (4th ed. 1991); W. Schroeder, J. Hoffman, & R. Thigpen, Alabama Evidence § 9-1 (1987).

The identification and authentication requirements in this rule are an integral part of logical relevancy. See J. Michael & M. Adler, Real Proof, 5 Vand.L.Rev. 344, 362 (1952). Even if an item of demonstrative evidence is otherwise probative of a material issue in the case, for example, the item is admissible only if it is what the offering party claims it to be. The question of authenticity or proper identification is, in the first instance, for the trial judge as a preliminary matter. See Ala.R.Evid. 104(a). The required foundational showing must consist of evidence “sufficient to support a finding that the matter in question is what its proponent claims.” The evidence of authentication or identification, as under prior Alabama practice, does not have to be conclusive or overwhelming; rather, it must be strong enough for the question to go to the jury. Any weaknesses in the foundational showing, insufficient to call for exclusion, go to the weight that the trier of fact is to give the evidence. See Tidwell v. State, 496 So.2d 109 (Ala.Crim.App.1986). Even if the offering party satisfies the requirement of this rule and the evidence is admitted, the ultimate question of authenticity or identification remains an issue for the jury.

It should be emphasized that compliance with the authentication or identification requirement does not necessarily render the item of evidence admissible. It must yet satisfy other evidentiary rules, such as those dealing with the best evidence requirements, hearsay, and relevancy. See, e.g., Atmore Farm & Power Equip. Co. v. Glover, 440 So.2d 1042 (Ala.1983).

Section (a) is identical to its federal counterpart.

Section (b). Illustrations. Section (a) states the general principle governing authentication and identification. Section (b) lists illustrative applications of this general rule. This list is not intended to be exclusive; rather, it is meant to guide in application of the general rule and is intended to leave “room for growth and development in this area of the law.” Fed.R.Evid. 901(b) advisory committee note.

The illustrative examples deal primarily, although not exclusively, with documents, voice communications, and data compilations. No specialized rules are stated for chattels; thus, their identification is to be governed by the general rule established in section (a), which largely reflects the preexisting common law.

Section (b), including its list of examples, is identical to the corresponding federal rule, except as to subsections (8) and (10).

Subsection (b)(1). Testimony of witness with knowledge. This method of authentication or identification is used with great frequency. A writing may be authenticated hereunder, for example, by testimony of a witness who saw the purported author write the document. Chattels, such as weapons or drugs, would be authenticated by testimony of successive handling sufficient to establish a chain of custody, as required under pre-rules Alabama law. See Burdett v. Hipp, 252 Ala. 37, 39 So.2d 389 (1949) (clothing); McGuffin v. State, 178 Ala. 40, 59 So. 635 (1912) (pistol); Crawford v. State, 112 Ala. 1, 21 So. 214 (1896) (pistol ball).

Subsection (b)(2). Nonexpert opinion on handwriting. As under traditional Alabama practice, lay witnesses may offer opinions as to whether an offered writing is in the handwriting of the purported author. Such lay opinions may be based upon a familiarity gained by seeing the person write, by exchanging correspondence, or by other means. See, e.g., Alabama Farm Bureau Mut. Casualty Ins. Co. v. Wood, 227 Ala. 624, 173 So.2d 787 (1965) (witness testifies that he has seen the purported author write and would recognize that person’s handwriting); Gilliland v. Dobbs, 234 Ala. 364, 174 So. 784 (1937) (authenticating witness had corresponded with the purported author). See generally C. Gamble, McElroy’s Alabama Evidence § 111.01(1) (4th ed. 1991). Such an opinion is not admissible if the familiarity upon which it is based is acquired for purposes of the litigation. Compare Ala.R.Evid. 901(b)(3) (permitting an opinion as to the genuineness of handwriting based upon familiarity gained to prepare the witness for litigation, if the witness is an expert).

Subsection (b)(3). Comparison by trier or expert witness. An expert may be called to the stand and, after making a comparison of the questioned document with a properly authenticated one, give an opinion as to whether the document in question is in the handwriting of the purported author. Likewise, a genuine specimen and the disputed specimen may be admitted, without benefit of an expert witness, for the trier of fact to make its own comparison for the purpose of deciding the question of authenticity. This comparison method of authentication, of course, is not limited to writings but may be applied to other forms of proof.

Such authentication by visual comparison, whether by expert witness or by the trier of fact, is consistent with traditional Alabama law as expressed in both statutes and rules of court. See Ala. Code 1975, §§ 12-21-39 and 12-21-40; Ala.R.Civ.P. 44(j). See also C. Gamble, McElroy’s Alabama Evidence § 111.01(2) (4th ed. 1991). Nothing in this rule abrogates the preexisting principle that a lay witness, shown to be familiar with the subject person’s handwriting as required by Rule 901(b)(2), may likewise make such a comparison. See Ala.R.Civ.P. 44(j); Ala. Code 1975, § 12-21-39.

Subsection (b)(4). Distinctive characteristics and the like. A document, chattel, conversation, or other evidence may possess characteristics so distinctive that, when considered in light of the circumstances, they may support a finding that the item in question is what its proponent claims it is. A document or a telephone conversation, for example, may be authenticated as emanating from a particular person by its disclosing facts within the peculiar knowledge of the communicating person. Similarly, the content and circumstances of a letter may be sufficient to authenticate it as a reply to another authenticated letter. See Fed.R.Evid. 901(b)(4) advisory committee’s note. This method of authentication or identification is consistent with historic Alabama law. See, e.g., Chrisman v. Brooks, 291 Ala. 237, 279 So.2d 500 (1973); Washington v. State, 539 So.2d 1089 (Ala.Crim.App.1988). Compare C. Gamble, McElroy’s Alabama Evidence § 322.01 (4th ed. 1991) (doctrine governing reply letter or reply telegram).

Subsection (b)(5). Voice identification. Like preexisting Alabama common law, Rule 901(b)(5) recognizes voice identification by opinion of a witness who has heard the voice at any time under circumstances connecting it with the alleged speaker. Lindsay v. State, 41 Ala.App. 85, 125 So.2d 716, cert. stricken, 271 Ala. 549, 125 So.2d 725 (1960), cert. denied, 366 U.S. 933 (1961). See C. Gamble, McElroy’s Alabama Evidence § 123.02 (4th ed. 1991). The identifying witness’s opinion is admissible, whether the voice in question was heard firsthand or through mechanical or electronic transmission or recording. See O’Daniel v. O’Daniel, 515 So.2d 1248 (Ala.Civ.App.1986), rev’d, 515 So.2d 1250 (Ala.1987). See also C. Gamble, McElroy’s Alabama Evidence § 329.01 (4th ed. 1991) (authentication of identity of person talking on telephone); J. Colquitt, Alabama Law of Evidence § 9.1(d) (1990).

Subsection (b)(6). Telephone conversations. A person’s self-identification during a telephone conversation, standing alone, is generally not sufficient proof that a voice heard by telephone was that of the person whose voice it is alleged to be. Such self-identification may be sufficient, however, if the number called, at which the self-identification is made, is that assigned by the telephone company, at the time of the call, to the person purportedly giving the self-identification. Similarly, if one makes a call to a number listed for a particular business, then the ensuing conversation, if it concerns business reasonably transacted over the telephone, is properly identified as having been conducted with that business.

These rules of identification relating to calls made to telephone numbers assigned to particular individuals and businesses have been embraced by some Alabama courts. See Midwestern Welding Co. v. Coosa Tool & Die, Inc., 54 Ala.App. 159, 306 So.2d 25 (1975); Loftin’s Rent-All, Inc. v. Universal Petroleum Servs., Inc., 344 So.2d 781 (Ala.Civ.App.1977). See also L. Scalise, Recent Decision, Identification of Anonymous Callers Through Circumstantial Evidence: May I Ask Who’s Calling, Please?, 36 Ala.L.Rev. 335 (1984). But see Yancey v. Ruffin, 281 Ala. 633, 206 So.2d 878 (1968).

Subsection (b)(7). Public records or reports. This rule provides for the authentication of a public record or report by evidence showing that the document is from the public office where such items are customarily kept. Two types of public records are included. The first type includes those authorized by law to be recorded or filed in a public office and which in fact are so recorded or filed. The second, more expansive, group includes any purported public record, report, statement, or data compilation, in whatever form, that is kept in a public office where items of the same nature are kept.

There are occasions when this rule will be activated by a proffer of the public record itself. In such a case, a foundation must be established to show that it comes from the public office where such records are customarily kept. As is more often the case, however, a copy of the public record is offered. If the copy is certified, then it may be self-authenticating by use of court rule, various authorizing statutes, or Ala.R.Evid. 902(1) through (4) (dealing with certified copy or copies under seal). Should an uncertified copy be offered, then the authenticating foundation set out in Rule 901 must be established. Courts applying Rule 901 admit uncertified records only if they are accompanied by testimony of the custodian, or some other witness qualified to testify, that the record does come from the public office where such documents are customarily kept. See, e.g., State v. Rice, 214 Neb. 518, 335 N.W.2d 269 (1983); Pollution Control Coordinating Bd. v. Kerr-McGee Corp., 619 P.2d 858 (Okla. 1980).

Satisfaction of subsection (b)(7) does not necessarily guarantee carte blanche admissibility. The document may yet be subject to objections based upon the best evidence rule, the hearsay rule, irrelevancy, etc. See, e.g., Ala.R.Evid. 1005 (public record exception to best evidence rule); Ala.R.Evid. 803(8) (public records exception to hearsay rule); Ala.R.Evid. 401 (materiality and relevancy requirements).

Subsection (b)(8). Ancient documents or data compilation. This subsection embraces the historic ancient documents exception to the authentication requirement. A document of the prerequisite age, if satisfying the other requirements concerning its condition and location, is self-authenticating. See Stewart v. Peabody, 280 Ala. 5, 189 So.2d 554 (1966). See also C. Gamble, McElroy’s Alabama Evidence § 321.01(1) (4th ed. 1991). Like the common law, subsection (b)(8) sets the required document age at thirty years. Compare State v. Broos, 257 Ala. 690, 60 So.2d 843 (1952). In that regard, it is different from the corresponding federal rule, which sets the age at twenty years. This subsection extends the principle of the ancient documents exception to a “data compilation, in any form”; thus, the principle now includes data stored electronically. See Fed.R.Evid. 901(b)(8) advisory committee’s note. Ancient documents likewise constitute an exception to the hearsay rule. See Ala.R.Evid. 803(16).

Even if the document or data compilation is of the prerequisite age, its condition must be such as to create no suspicion concerning its authenticity. This requirement reflects preexisting Alabama law. See McMillan v. Aiken, 205 Ala. 35, 88 So. 135 (1920). See also C. Gamble, McElroy’s Alabama Evidence § 321.04 (4th ed. 1991).

A third requirement, beyond the prerequisites of age and condition, is that the proponent must show that the document or data compilation was taken from a place where, if authentic, it would likely be found. This requirement comports with prior Alabama law. See, e.g., Jordan v. McClure Lumber Co., 170 Ala. 289, 54 So. 415 (1910).

There is preexisting Alabama authority for the proposition that an ancient document of title to real property is not admissible under the ancient documents exception unless, during the applicable number of years, the party claiming under it either held possession of the land or could show some other guarantee of authenticity, such as payment of taxes or nonoccupation by others. See Sloss-Sheffield Steel & Iron Co. v. Lollar, 170 Ala. 239, 54 So. 272 (1910); White v. Farris, 124 Ala. 461, 27 So. 259 (1900). The requirement that possession of the land be shown to have been consistent with a document of title is not carried forward under these Rules of Evidence, at least not under Rule 901(b)(8). See Fed.R.Evid. 901(b)(8) advisory committee’s note. Compare Ala.R.Evid. 803(15) (specialized hearsay exception for title documents, which requires that dealings with the property have been consistent with the document).

Subsection (b)(9). Process or system. The foundational requirement of subsection (b)(9) applies whenever evidence of a result depends, for its accuracy, upon the process or system that produced it. The prerequisite showing is twofold: (1) evidence describing the process or system used to produce the result, and (2) evidence showing that the process or system used is accurate in the result it produces. This requirement is consistent with preexisting Alabama law. See, e.g., Ex parte Bush, 474 So.2d 168 (Ala.1985) (intoxication test); Evans v. Tanner, 286 Ala. 651, 244 So.2d 782 (1971) (X-ray). Compare C. Gamble, McElroy’s Alabama Evidence §§ 60.03(12) (drunkometer test), 123.05 (X-ray photographs); 490.01(4) (blood test to prove or disprove paternity) (4th ed. 1991). The committee intends that the rule will apply to computer results. See Transport Indem. Co. v. Seib, 178 Neb. 253, 132 N.W.2d 871 (1965); State v. Veres, 7 Ariz. App. 117, 436 P.2d 629 (1968), cert. denied, 393 U.S. 1014 (1969). Nothing in subsection (b)(9) precludes the continued application of Alabama precedent requiring that the person making the test or operating the system be qualified to do so. Lyle v. Eddy, 481 So.2d 395 (Ala.Civ.App.1985). Additionally, evidence establishing a chain of custody or identification would remain necessary when the process involves the testing of a sample. See Nordan v. State, 143 Ala. 13, 39 So. 406 (1905). Even after the adoption of this subsection, the trial court will be free to take judicial notice of the accuracy of a process or system. See Ala.R.Evid. 201.

Nothing in subsection (b)(9) is intended to preclude the trial judge from considering, as a preliminary matter under Ala.R.Evid. 104(a), the general state of knowledge in the field as to whether a process or system does indeed produce an accurate result.

Subsection (b)(10). Methods provided by statute or rule. Rule 901 does not supersede methods of authentication or identification set forth in statutes or other rules promulgated by the Supreme Court of Alabama. As the introduction to the Rule 901(b) listing states, the methods of authentication or identification listed are merely illustrative. Consequently, alternative methods available by statute or rule of court are preserved. Statutory examples are as follows: Ala. Code 1975, § 26-17-12(b) (Uniform Parentage Act, providing foundation for admissibility of blood tests conducted to prove paternity); Ala. Code 1975, § 32-5A-194 (governing foundation required when blood, urine, breath, or other bodily substances have been tested for presence of alcohol or controlled substance). As a matter of illustration, the committee notes that alternative methods of authentication or identification are found in other rules of court. See, e.g., Ala.R.Civ.P. 10(c) (providing that a party may attach a written instrument to a pleading and thereby render it a part of the pleading); Ala.R.Civ.P. 56(e) (sworn or certified documents attached to affidavits supporting or opposing a motion for summary judgment may be considered by the court on question of whether there is a genuine issue of material fact justifying a trial); Ala.R.Civ.P. 44(a) (providing for authentication of foreign or domestic official records); Ala.R.Civ.P. 16(3) (recognizing the power of the trial court to adopt pretrial procedures that result in required authentication so as to avoid use of trial time for authentication).

The Alabama Rules of Civil Procedure likewise recognize the availability of authentication methods contained in “the rules of evidence at common law.” Ala.R.Civ.P. 44(c). The reasonable interpretation of this language, based upon other references in the Alabama Rules of Civil Procedure, is that authentication methods are available when contained in whatever set of evidence rules happens to be in force at the time the evidence is offered. See Ala.R.Civ.P. 33(b) (recognizing that answers to interrogatories may be used “to the extent permitted by the rules of evidence”); Ala.R.Civ.P. 43(a) (providing that: “All evidence shall be admitted which is admissible under statute or under the rules of evidence which are now applied or shall hereafter be applied in the courts of the State of Alabama”) (emphasis added).

Rule 902. Self-authentication.

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(1)   DOMESTIC PUBLIC DOCUMENTS UNDER SEAL. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

(2)   DOMESTIC PUBLIC DOCUMENTS NOT UNDER SEAL. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

(3)   FOREIGN PUBLIC DOCUMENTS. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.

(4)   CERTIFIED COPIES OF PUBLIC RECORDS. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any applicable statute or other rule of court.

(5)   OFFICIAL PUBLICATIONS. Books, pamphlets, or other publications purporting to be issued by public authority.

(6)   NEWSPAPERS AND PERIODICALS. Printed materials purporting to be newspapers or periodicals.

(7)   TRADE INSCRIPTIONS AND THE LIKE. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

(8)   ACKNOWLEDGED DOCUMENTS. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.

(9)   COMMERCIAL PAPER AND RELATED DOCUMENTS. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.

(10)   SELF-AUTHENTICATION UNDER STATUTES AND RULES OF COURT. Any signature, document, or other matter declared by any statute, state or federal, or any rule promulgated by the Alabama Supreme Court to be presumptively or prima facie genuine or authentic.

(11)   CERTIFIED DOMESTIC RECORDS OF REGULARLY CONDUCTED ACTIVITY. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by an affidavit or sworn testimony of its custodian or other qualified person, certifying that the record:

(A)   was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B)   was kept in the course of the regularly conducted activity; and

(C)   was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this section must provide written notice of that intention to all adverse parties and must make the record and certification available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

(12)   CERTIFIED FOREIGN RECORDS OF REGULARLY CONDUCTED ACTIVITY. The original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record:

(A)   was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;

(B)   was kept in the course of the regularly conducted activity; and

(C)   was made by the regularly conducted activity as a regular practice.

The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them. [Amended 8-15-2013, eff. 10-1-2013.]

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Rule 901 sets out the foundations that must be established, through extrinsic proof, to authenticate or identify evidence. Some items of evidence, however, are self-authenticating, meaning that no extrinsic proof is necessary to authenticate or identify them. A self-authenticating document is said to be genuine on its face. Instances of such self-authentication have been developed historically by case law, statute, and rule of court. Rule 902 undertakes to collect and incorporate these instances, with some incidental expansion. See Fed.R.Evid. 902 advisory committee’s note.

Satisfaction of any self-authentication method contained in Rule 902 does not guarantee genuineness. Consequently, nothing in Rule 902 is intended to preclude the offering party’s opponent from disputing authenticity. Any document or record offered under Rule 902 must satisfy other evidentiary concerns, such as the hearsay rule and the best evidence rule. See, e.g., Ala.R.Evid. 803(8) (public records exception to the hearsay rule); Ala.R.Evid. 1005 (public records exception to the best evidence rule).

Paragraph (1). Domestic public documents under seal. This rule provides self- authentication for any domestic public document that bears a seal purporting to be that of the United States, any state or other domestic political entity or any subdivision thereof (as well as any territory or insular possession of the United States, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands), including any subdivision, department, officer, or agency thereof. In addition to the required governmental seal, such a self-authenticating document must carry a signature purporting to be an attestation or execution.

The nearest comparable provision under preexisting Alabama law is found in Rule 44(a)(1) of the Alabama Rules of Civil Procedure. It and this Rule 902 use identical language to describe the political entities whose official records are accorded self-authenticating status. Beyond the use of this common language, however, the two rules diverge. Ala.R.Civ.P. 44(a)(1) grants self-authentication to an official record in the form of an “official publication.” See Winegardner v. Burns, 361 So.2d 1054 (Ala.1978) (weather reports published by the Department of Commerce). Rule 902(1), on the other hand, accords such status to any public document bearing a seal and a signature purporting to be an attestation or execution. Additionally, Rule 44(a)(1) is broader, in that it applies to copies of such public records if the copies are properly attested or certified; Rule 902(1) applies only to originals. Rule 902(1) leaves self-authentication of copies of public records to be treated under Rule 902(4), other rules of court, or statutes.

Paragraph (2). Domestic public documents not under seal. Paragraph (1) establishes self-authentication for domestic public documents that are both under seal and signed. Paragraph (2) provides a means of self-authentication for domestic public documents that possess the signature of an officer or employee but carry no seal. Self-authentication for such unsealed documents arises when another officer, who has both a seal and official duties within the same political subdivision as the officer who signed but affixed no seal, certifies under seal that the signer possessed the official capacity and that the signature is genuine.

Alabama has no comparable preexisting rule. It should be noted, of course, that “official publications” of the documents referred to in paragraph (2), as well as copies of those documents, could be admissible if the offeror complies with Rule 44(a)(1), Ala.R.Civ.P. Copies could likewise be considered as authentic if they meet the requirements of Ala.R.Evid. 902(4) or other court rule or statute.

Paragraph (3). Foreign public documents. No extrinsic evidence is required to authenticate a foreign public document if it: (1) purports to have been executed or attested by a foreign official with authority to make the execution or attestation and (2) is accompanied by a final certification. The accompanying final certification must be made by a diplomatic or consular officer of the United States or such an officer of a foreign country who is “assigned or accredited to the United States.”

An alternative form of final certification for foreign public documents is provided in those instances where no direct certification has been made by the appropriate diplomatic or consular official. This would arise primarily when a chain of certificates has been attached but only the last certificate is executed by an official qualified under the rule. Suppose, for example, that A purposes to execute or attest a qualifying foreign public document. B, who is not a United States diplomatic or consular official and who is not a diplomatic or consular official assigned or accredited to the United States, certifies the genuineness of A’s signature and A’s official position. Subsequently, C – who is a qualified official – is unable to certify as to A but does certify that B’s signature is genuine and that B’s official capacity is as purported. Such a chain of certificates would constitute final certification under Rule 902(3)(B).

Paragraph (3) ends with two alternative and overriding exceptions to the final certification requirement. These exceptions are activated whenever (1) all parties have been given reasonable opportunity to investigate the authenticity and accuracy of the documents and (2) good cause is shown by the party seeking to be relieved of the customarily required final certification. When these two requirements are met, the court may take either of two actions. First, it may treat the document as presumptively authentic, without final certification. Alternatively, it may admit attested summaries of such records, with or without final certification.

This paragraph (3) principle of self-authentication for foreign documents is similar to that of Rule 44(a)(2) of the Alabama Rules of Civil Procedure, and the language of the two is nearly identical. Rule 902(3), however, is broader than Rule 44(a)(2) in that it applies to public documents, rather than being limited to public records. See Fed.R.Evid. 902(3) advisory committee’s note.

Paragraph (4). Certified copies of public records. This paragraph recognizes the most common form of self-authentication – i.e., self-authentication of certified copies of public records and reports. Additionally, however, it extends to certified copies of public documents that are authorized by law to be recorded or filed and that have in fact been recorded or filed in a public office. This paragraph does not apply to unrecorded public documents. See Fed.R.Evid. 904(4) advisory committee’s note.

Such a copy of a record, report, or officially filed or recorded document is deemed authentic only if it is accompanied by a certification made by the custodian or other person authorized to make the certification. The certificate must comply with Rule 902(1), (2) or (3) or with any statute or other rule of court. See Ala.R.Civ.P. 44(e). The prerequisites of the required certificate depend upon the type of document in question. A foreign document’s accompanying certification, for example, would be satisfactory if made in compliance with Ala.R.Evid. 902(3). A proper certification of a domestic public document would exist if, in compliance with Rule 902(1), the document bears a seal and a signature purporting to be an attestation or execution. If the document is signed, but not under seal, then its authenticity as a domestic public document could be satisfied by compliance with Rule 902(2).

Paragraph (5). Official publications. This paragraph dispenses with the need for preliminary proof of authenticity in regard to purportedly official publications. No proof is required that such publications were, in fact, issued by a public authority; rather, it suffices that the publication purports to have been so issued. While this paragraph is not so limited, its customary application is to statutes, court reports, and rules and regulations. See Fed.R.Evid. 902(5) advisory committee’s note. Admission of such official publications is consistent with preexisting Alabama practice, although paragraph (5) expands that preexisting practice. See, e.g., Ala.R.Civ.P. 44(a)(1) (granting self-authentication to an “official publication” of any domestic public record); Ala.R.Civ.P. 44(a)(2) (similar concept affording self-authentication to “official publication” of a foreign record).

Paragraph (6). Newspapers and periodicals. According self-authentication to printed materials purporting to be newspapers or periodicals is based upon the belief that the likelihood of forgery of such materials is slight. See Fed.R.Evid. 902(6) advisory committee’s note.

Accepting such materials as authentic, under this paragraph, does not necessarily answer other evidentiary concerns, such as materiality, relevancy, hearsay, etc. Likewise, accepting the authenticity of a newspaper or periodical does not resolve the issues of authority and responsibility for items contained therein. See Fed.R.Evid. 902(6) advisory committee’s note; Liberty Lobby, Inc. v. Anderson, 562 F.Supp. 201, 203 (D.D.C.1983), aff’d in part, rev’d in part, 746 F.2d 1563 (D.C.Cir.1984), vacated, 477 U.S. 242 (1986).

No corresponding principle exists under prior Alabama law. It should be noted, however, that Alabama has long provided statutory self-authentication status for published prices current and commercial lists when they are offered to prove the value of any article of merchandise. See Ala. Code 1975, § 12-21-113.

Paragraph (7). Trade inscriptions and the like. Preliminary proof of genuineness is not required in regard to inscriptions, signs, tags, or labels when they (1) purport to have been affixed in the course of business and (2) indicate ownership, control, or origin. A very good statement of the reliability grounds underlying this form of self-authentication is found in the advisory committee’s note to Fed.R.Evid. 902(7): “The risk of forgery is minimal. Trademark infringement involves serious penalties. Great efforts are devoted to inducing the public to buy in reliance on brand names, and substantial protection is given them.”

Paragraph (7) is consistent with preexisting Alabama practice, which has exempted inscriptions on chattels from the rigors of the best evidence rule. See Benjamin v. State, 12 Ala. App. 148, 67 So. 792 (1915); C. Gamble, McElroy’s Alabama Evidence § 212.03 (4th ed. 1991). Additionally, admission of such evidence is consistent with those Alabama decisions holding that a price tag is admissible as evidence going to prove the value of stolen property. See, e.g., DeBruce v. State, 461 So.2d 889 (Ala.Crim.App.1984); C. Gamble, McElroy’s Alabama Evidence § 259.03 (4th ed. 1991). Paragraph (7) is likewise within the spirit of those decisions admitting evidence, in criminal prosecutions, of labels on bottles to prove the nature of the contents. See, e.g., Woods v. State, 247 Ala. 155, 22 So.2d 901 (1945); Kilpatrick v. State, 38 Ala.App. 256, 81 So.2d 926 (1955); C. Gamble, McElroy’s Alabama Evidence § 190.09 (4th ed. 1991). Last, the committee notes that the principle of paragraph (7) has been applied in decisions admitting containers with inscriptions to prove a person’s knowledge of the contents of the container. See, e.g., Chisolm v. State, 204 Ala. 69, 85 So. 462 (1920). See also C. Gamble, McElroy’s Alabama Evidence § 64.01 (4th ed. 1991).

Paragraph (8). Acknowledged documents. Acknowledged title documents have long been given the status of self-authenticating. See, e.g., Ala. Code 1975, §§ 12-21-61 (exempting proponent of duty to produce attesting witnesses if the writing is self-proving); 35-4-27 (self-proving status recognized for acknowledged deeds, powers of attorney, other instruments of conveyance, affidavits, and contracts); 35-4-65 (deeds and other conveyances of property). See also C. Gamble, McElroy’s Alabama Evidence § 233.01(4)(b) (4th ed. 1991). Paragraph (8) extends that self-proving status to all other acknowledged documents that are accompanied by a properly executed certificate or acknowledgment given by a notary public or other legally authorized officer. This expansion of the former practice is based upon the theory that, if self-authentication is accorded documents as important as those affecting titles, it should not be denied to other properly acknowledged documents. See Fed.R.Evid. 902(8) advisory committee’s note.

Paragraph (9). Commercial paper and related documents. The purpose of paragraph (9) is to embrace those principles of preexisting general commercial law that grant self-authentication status to commercial paper, signatures thereon, and documents relating thereto. This self-proving status arises only as provided under general commercial law. Alabama’s general commercial law in this regard is found largely, particularly as related to commercial paper, in the Uniform Commercial Code. The U.C.C.’s self-authentication provisions are thus incorporated into paragraph (9). See, e.g., Ala. Code 1975, §§ 7-1-202 (providing prima facie authenticity for documents issued by a third party to a contract – e.g., a bill of lading, a policy or certificate of insurance, an official weigher’s or inspector’s certificate, a consular invoice, or any other document authorized or required by contract); 7-3-307 (authenticity of signatures on negotiable instruments are taken as admitted unless denied in the pleadings); 7-3-510 (documents indicating that payment was refused – such as drawee’s stamp of nonpayment, a certificate of protest, or bank records reflecting dishonor – granted self-authentication in drawer or payee’s lawsuit based on dishonor); 7-8-105 (signature on negotiable instrument presumed genuine). Compare C. Gamble, McElroy’s Alabama Evidence §§ 267.01, 268.01, 268.02, 268.07, 268.08, 269.01, 269.03, 322.02(3) (4th ed. 1991).

Paragraph (10). Self-authentication under statutes and rules of court. This paragraph (10) recognizes the continued viability of preexisting and future rules of self-authentication found in both statutes and rules of court under which signatures, documents, and other matters are declared to be presumptively or prima facie genuine or authentic. See, e.g., Ala.R.Civ.P. 44(a)(1) (self-authentication of official publications); Ala.R.Civ.P. 44(a)(2) (self-authentication of foreign, public documents); Ala. Code 1975, §§ 12-21-90 (authorized notice from armed forces declared prima facie evidence of service person’s death), 12-21-92 (secretary of state’s publication of foreign interest rates received as presumptive evidence of such interest rates), 12-21-97 (ineffective, pre-1879 land patents prima facie evidence of sale or transfer and payment of the purchase money), 12-21-99 (sheriff’s deed prima facie evidence of recitals therein), 12-21-101 (religious registers of marriage, birth, and death constitute presumptive evidence of the facts stated therein). See also Ala.R.Civ.P. 44(g) (disinterested party’s historical work, book of science or art, or published map or chart granted prima facie status as evidence of general notoriety and interest); 26 U.S.C. § 6064 (1988) (signature on tax return prima facie genuine).

Advisory Committee’s Notes to Adoption of Rule 902(11) and (12) Effective October 1, 2013

Sections (11) and (12) have been added to Rule 902 to keep this rule consistent with Fed. R. Evid. 902, which was amended in 2000. The amendment adds two new sections to the rule on self-authentication. It sets forth a procedure by which parties can authenticate certain records of regularly conducted activity other than through the testimony of a foundation witness. See Ala. R. Evid. 803(6) (as amended effective October 1, 2013).

The intent behind the addition of Rule 902(11) and (12) is to provide an alternative means of authenticating records of regularly conducted activity. The amendment is not intended to give these records carte blanche admissibility. With the adoption of Rule 902(11) and (12), the amendment to Rule 803(6), and previously existing Rule 1001(2) and (3), the proponent of the evidence may now overcome authentication, hearsay, and best-evidence-rule objections with a properly certified copy of a record of regularly conducted activity, but all other valid objections remain. Thus, even if the proponent of the evidence satisfies the requirements of these sections, the evidence may still be excluded under applicable general rules of evidence. See 2 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 319.01(4) (6th ed. 2009) (”The fact that an offered item of evidence is properly authenticated does not grant it carte blanche admissibility. Other evidentiary objections may be lodged against its admission.”).

The notice requirements in Rule 902(11) and (12) are intended to give the opponent of the evidence a full opportunity to test the adequacy of the foundation set forth in the declaration.

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.

Rule 903. Subscribing witness’s testimony unnecessary.

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

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Historic Alabama practice has embraced a rule of preference that generally calls for the production of attesting witnesses, or an accounting for their unavailability, whenever one is proving the execution of an attested document. See Snead v. Stephens, 242 Ala. 76, 5 So.2d 740 (1941). See also C. Gamble, McElroy’s Alabama Evidence § 233.01(1) (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 9.3 (1990). Over the years, numerous exceptions have been created to this rule of preference, and under them the offering party is free to go directly to alternative proof of authenticity without producing the attesting witness or accounting for that witness’s unavailability. See, e.g., Ala. Code 1975, § 12-21-61 (declaring the attesting witness rule inapplicable to ancient writings, official bonds, writings that are only collaterally involved, writings as to which the maker testifies to proper execution, and writings that are self-proving); Ala. Code 1975, § 12-21-60 (permitting the execution of a writing to be proved without producing attesting witnesses if testimony of the maker is offered); Ala.R.Civ.P. 44(1) (containing many of the exceptions to the attesting witness rule embodied in the statutes just listed). Compare Ala.R.Evid. 901(b)(8) (recognizing the self-authentication of ancient documents); Ala.R.Evid. 902 (dealing with the self-authentication of certain public records or documents).

Rule 903 is identical to its federal counterpart and is consistent with the above-listed exceptions; it abandons across-the-board any necessity of producing attesting or subscribing witnesses unless the law governing the validity of the writing requires it. See Fed.R.Evid. 903. One instance under which attesting witnesses will have to be produced or their unavailability accounted for, after adoption of Rule 903, is found in the statutory provision calling for the production of available attesting witnesses to prove the proper execution of a will. Ala. Code 1975, § 43-8-169.

Rule 903 supersedes Ala.R.Civ.P. 44(i) insofar as the latter demands the production of, or an accounting for the unavailability of, subscribing witnesses in instances other than those in which it is required by the law governing the validity of the document in question.

Rule 1001. Definitions.

For purposes of this article the following definitions are applicable:

(1)   WRITINGS. “Writings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, or other form of data compilation.

(2)   ORIGINAL. An “original” of a writing is the writing itself or any counterpart intended to have the same effect by a person executing or issuing it. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original.”

(3)   DUPLICATE. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, or by equivalent technique which accurately reproduces the original.

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Paragraph (1). Writings. Alabama’s best evidence rule continues applicable to writings only. Adoption of this rule is a rejection of the corresponding federal rule, which expands the best evidence principle to cover recordings and photographs. See Fed.R.Evid. 1001(1). Chattels generally remain outside the scope of the best evidence principle. See Jones v. Pizza Boy, Oxford, Inc., 387 So.2d 819 (Ala.1980). Tape recordings, for example, present no best evidence issue. O’Daniel v. O’Daniel, 515 So.2d 1248 (Ala.Civ.App.), rev’d, 515 So.2d 1250 (Ala.1987) (holding re-recording of taped conversation admissible without accounting for unavailability of the original tape). See C. Gamble, McElroy’s Alabama Evidence § 212.01 (4th ed. 1991).

Nothing in paragraph (1) generally negates those preexisting Alabama decisions declaring the best evidence requirements inapplicable to chattels carrying inscriptions. See, e.g., Benjamin v. State, 12 Ala.App. 148, 67 So. 792 (1915) (best evidence rule inapplicable to inscriptions on a parcel, words written on a valise, and labels attached to jugs or decanters and indicating their contents). Paragraph (1) is broad enough, however, to permit future courts to declare the best evidence rule applicable to an inscribed chattel when, among other things, its communicative nature predominates, its terms are crucial to the dispute, its message is complex, there would be difficulty in a witness’s correctly relating the message, and the size of the chattel would not make its production difficult. Even if an inscribed chattel were held to be within the best evidence requirements, it could yet be admissible as within some exception to the best evidence rule. See, e.g., Ala.R.Evid. 1004(4) (no obligation to produce the original or establish its unavailability, as a prerequisite to introducing oral testimony regarding the contents of a writing, if the writing involves a collateral matter – i.e., one that is not closely related to a controlling issue).

Use of the words “data compilation” makes it clear that the best evidence rule is expanded by Rule 1001 to include computerized records. Compare Ala.R.Evid. 803(6) (bringing computer records within the business records exception to the hearsay rule); Ala.R.Evid. 901(b)(7) (data compilations as constituting business records for purposes of authentication).

Paragraph (2). Original. Multiple copies of a writing constitute originals if they were intended equally to evidence the transaction by the person executing it. Common law decisions referred to such documents as “duplicate originals.” See C. Gamble, McElroy’s Alabama Evidence § 225.01(2) (4th ed. 1991). As under preexisting Alabama law, the “original” may include a carbon copy of a document executed in duplicate. See, e.g., Tolbert v. State, 450 So.2d 805 (Ala.Crim.App.1984); Campbell Motor Co. v. Brewer, 212 Ala. 50, 101 So. 748 (1924). The status of original is likewise conferred upon any computer printout. See Fed.R.Evid. 1001(3) advisory committee’s note.

Paragraph (3). Duplicate. Copies produced by methods possessing considerable accuracy, and virtually eliminating the possibility of error, are accorded most of the best evidence dispensation historically reserved for originals. See United States v. Skillman, 922 F.2d 1370, 1375 (9th Cir.1990), cert. dismissed, 502 U.S. 922 (1991) (holding that a “Xerox” copy qualifies as a duplicate under Fed.R.Evid. 1001(4)); United States v. Gipson, 609 F.2d 893 (8th Cir.1979) (recognizing that photocopies constitute duplicates); Ala.R.Evid. 1004. These are not “duplicate originals,” as that term was known to the common law and as is set forth in Rule 1001(2), because generally they will not have been intended to have equal effect with the original in evidencing the transaction or, as set forth in Rule 1001(2), will not have been “intended to have the same effect by a person executing or issuing it.” A copy subsequently made, whether by typewriting or by hand, would not qualify under paragraph (3) as a duplicate.

Rule 1002. Requirement of original.

To prove the content of a writing, the original writing is required, except as otherwise provided by statute, these rules, or by other rules applicable in the courts of this state.

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This rule expresses the traditional best evidence principle. Whenever the offeror is proving the content of a writing, the original is required unless otherwise provided by statute, these rules, or other rules applicable in the courts of this state. This constitutes a rule of preference for the original over secondary evidence as to the contents of the writing. This preference is consistent with preexisting Alabama law. See Wiggins v. Stapleton Baptist Church, 282 Ala. 255, 210 So.2d 814 (1968). See also C. Gamble, McElroy’s Alabama Evidence § 212.01 (4th ed. 1991).

The rule of preference applies only when the nonoriginal evidence is offered to prove the content of the writing. This language reaffirms that traditional authority in Alabama recognizing the admissibility of secondary evidence when the offeror is not seeking to prove the contents of a writing. An event, for example, may be proven by oral testimony even though, for convenience, it has been evidenced by a writing. Illustratively, witnesses may testify to the fact of marriage without first producing or accounting for the nonproduction of the certificate or record of the marriage. Fuquay v. State, 217 Ala. 4, 114 So. 898 (1927). One may relate the cost of a building without producing checks and receipts. Johnson v. Langley, 495 So.2d 1061 (Ala.1986). This is consistent with that line of decisions permitting a witness, over a best evidence objection, to relate the payment of money without producing the receipt or showing an excuse for not producing it. Monfee v. Hagan, 201 Ala. 627, 79 So. 189 (1918). See C. Gamble, McElroy’s Alabama Evidence § 226.03 (4th ed. 1991).

The Rule 1002 preference for the original is expressly subordinate to other rules and statutes that provide for the admissibility of secondary evidence, such as copies or oral testimony, without the offeror’s producing the original or accounting for its nonproduction. See, e.g., Ala.R.Civ.P. 44(a) (dealing with admissibility of copies of public records); Ala. Code 1975, § 35-4-27 (certified copies of probate records as statutory exception to best evidence rule); Ala. Code 1975, § 41-5-21 (certified copy of report by examiner of public accounts).

Rule 1002, although not identical to it, is based on Fed.R.Evid. 1002.

Rule 1003. Admissibility of duplicates.

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

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The term “duplicate” is defined in Rule 1001(3) as including “a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, or by equivalent technique which accurately reproduces the original.” Rule 1003 exempts duplicates from the best evidence rule of preference for originals. A duplicate is thus admissible, without accounting for the original or establishing its unavailability, unless there exists either a genuine issue as to the authenticity of the original or the circumstances would make it unfair to admit the duplicate in lieu of the original.

This treatment of duplicates is contrary to traditional Alabama practice. Photocopies, for example, generally have not been exempt from a best evidence objection. See Kessler v. Peck, 266 Ala. 669, 98 So.2d 606 (1957). See also C. Gamble, McElroy’s Alabama Evidence § 225.01(4) (4th ed. 1991); J. Colquitt, Alabama Law of Evidence § 10.3 (1990). Duplicates may be admissible without regard to the best evidence preference for originals; however, they could also be admissible under some other theory, such as constituting a duplicate original. See Ala.R.Evid. 1001(2) (setting forth a definition of “original” that includes copies that were intended to have the same effect as the original). Compare Tolbert v. State, 450 So.2d 805 (Ala.Crim.App.1984). Duplicates, in the form of photocopies, have received special statutory exemption from the hearsay rule under Alabama law. See McClain v. State, 473 So.2d 612 (Ala.Crim.App.1985); Ala. Code 1975, § 12-21-44 (photocopies of business records); Ala. Code 1975, § 5-4A-1 (microphotographic reproductions of bank records). See also Ala.R.Evid. 1002.

This special treatment afforded duplicates is inapplicable if a genuine question is raised as to the authenticity of the original. See Myrick v. United States, 332 F.2d 279 (5th Cir.1963), cert. denied, 377 U.S. 952 (1964) (no error in admitting photostatic copies of checks instead of original microfilm in absence of suggestion to trial judge that photostatic copies were incorrect). Additionally, the duplicate is not admissible under Rule 1003 without the offeror’s producing or accounting for the nonproduction of the original, if the circumstances would make it unfair to admit the duplicate in lieu of the original. Such circumstances would be presented when only a portion of the original is reproduced and fairness dictates that the remainder be made available to the opposing party for cross-examination. See United States v. Alexander, 326 F.2d 736 (4th Cir.1964); Fed.R.Evid. 1003 advisory committee’s note.

Rule 1004. Admissibility of other evidence of contents.

The original is not required, and other evidence of the contents of a writing is admissible, should there be no duplicate readily available to the proponent or witness, if:

(1)   ORIGINALS LOST OR DESTROYED. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2)   ORIGINAL NOT OBTAINABLE. No original can be obtained by any available judicial process or procedure; or

(3)   ORIGINAL IN POSSESSION OF OPPONENT. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or

(4)   COLLATERAL MATTERS. The writing is not closely related to a controlling issue.

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Ala.R.Evid. 1002 establishes the requirement that generally one must produce the original when proving the contents of a writing. Rule 1004, as does its counterpart under the Federal Rules of Evidence, sets forth those grounds that, if shown by the offering party, justify the admission of secondary evidence of the contents of the writing. These grounds, which allow the offeror to circumvent the best evidence preference for the original, have long been recognized in Alabama. See generally C. Gamble, McElroy’s Alabama Evidence § 212.01 (4th ed. 1991). If the failure to produce the original is satisfactorily explained under one of the paragraphs of this rule, the door is then open to admit secondary proof of the original’s contents. Such secondary evidence historically has presented itself in such forms as oral testimony and copies.

While a showing of an original’s unavailability opens the door to secondary evidence as to its contents, there is a hierarchy governing the order of offering such secondary evidence. Rule 1004 continues Alabama’s historic principle that there are degrees of secondary evidence; specifically, one may not offer oral testimony as to the contents of a writing without first having to produce or account for the nonproduction of a copy that exists. See Williams v. Lyon, 181 Ala. 531, 61 So. 299 (1913) (recognizing that one must offer secondary evidence of the “highest grade”). See also C. Gamble, McElroy’s Alabama Evidence § 229.02 (4th ed. 1991) (dealing with Alabama’s historic position that there are degrees of secondary evidence and that the proponent has the obligation to present the highest form of that evidence). This is a rejection of the corresponding federal rule under which there are no degrees of secondary evidence. See Fed.R.Evid. 1004 advisory committee’s note.

Paragraph (1). Originals lost or destroyed. If the originals are shown to be lost or destroyed, the way is then clear for the offeror to present secondary evidence to prove the contents of the originals. The plural term “originals” is used to carry through the idea that if there were duplicate originals, see Rule 1001(2) and advisory committee’s notes, then it would be necessary to show that all originals were lost or destroyed as a condition precedent to the admissibility of secondary evidence. The original may have been lost or destroyed by the party who now offers the secondary evidence, so long as the loss or destruction was not accomplished in bad faith.

This principle continues former Alabama practice. Loss of the original historically has excused nonproduction of the original. See Bradley v. Nall, 505 So.2d 1062 (Ala.1987). See also C. Gamble, McElroy’s Alabama Evidence § 214.01 (4th ed. 1991). Paragraph (1) is not intended to alter preexisting Alabama law requiring that a search have been conducted before loss of the original can justify admission of secondary evidence as to the original’s contents.

Traditional Alabama practice likewise recognizes destruction of the original as an excuse for its nonproduction and thus as permitting the receipt of secondary evidence. See Howton v. State, 391 So.2d 147 (Ala.Crim.App.1980). See also C. Gamble, McElroy’s Alabama Evidence § 215.01 (4th ed. 1991). Such destruction may have been at the hands of the party seeking to avoid the best evidence preference for the original, so long as the destruction was not accomplished for the purpose of preventing the original’s use as evidence. See J.R. Watkins Co. v. Goggans, 242 Ala. 222, 5 So.2d 472 (1941); May Hosiery Mills v. Munford Cotton Mills, 207 Ala. 27, 87 So. 674 (1920).

Paragraph (2). Original not obtainable. If the original is in the hands of a third person (not the opponent), and it cannot be obtained by any judicial process or procedure, then other evidence is admissible to prove its contents. See Fed.R.Evid. 1004(2) advisory committee’s note. Compare Ala.R.Evid. 804(a)(5) (defining “unavailability” as including an inability to procure a hearsay declarant’s attendance or testimony by “process or other reasonable means”).

Under prior Alabama law, detention of the original by a third person has constituted unavailability, for the purpose of determining whether one could offer secondary evidence. See Brooks v. State, 462 So.2d 758 (Ala.Crim.App.1984). See also C. Gamble, McElroy’s Alabama Evidence § 217.01 (4th ed. 1991). Preexisting Alabama law does not require an offeror relying upon this ground of unavailability to show an effort to have the third person produce the original, if the third person is located outside Alabama. See Richardson v. State, 437 So.2d 645 (Ala.Crim.App.1983); Waters v. Mines, 260 Ala. 652, 72 So.2d 69 (1954). If the third person in possession of the original is in Alabama, then secondary evidence of the original’s contents will not be admitted “unless a subpoena duces tecum has been issued to such third person and has failed of success.” C. Gamble, McElroy’s Alabama Evidence § 217.01(2) (4th ed. 1991). See Bogan v. McCutchen, 48 Ala. 493 (1872); Smith v. Armistead, 7 Ala. 698 (1845).

Paragraph (3). Original in possession of opponent. If a party opponent is in control of the original, at a time when that party is placed on notice that proof of its contents will be offered at the hearing, that party’s failure to produce the original at the hearing sufficiently establishes the unavailability of the original to justify admission of secondary evidence as to its contents. The prerequisite notice may be accomplished by pleadings or otherwise. Such notice is required, rather than to compel production as by use of a subpoena duces tecum, merely to afford the party opponent an opportunity to “ward off secondary evidence by offering the original.” Fed.R.Evid. 1004(3) advisory committee’s note.

As applied in civil cases, the notice requirement of Rule 1004(3) is substantially the same as that imposed under preexisting Alabama law. See Jones v. State, 473 So.2d 1197 (Ala.Crim.App.1985); C. Gamble, McElroy’s Alabama Evidence § 216.01 (4th ed. 1991). Like preexisting Alabama evidence law, Rule 1004(3) does not require that the prerequisite notice be made in writing; however, notice ordinarily ought to be made in written form. See Allen v. Southern Coal & Coke Co., 205 Ala. 363, 87 So. 562 (1921). Rule 1004(3) changes the Alabama authority suggesting that such notice generally may not be given at the hearing itself unless the original is in court. See Stremming Veneer Co. v. Jacksonville Blow Pipe Co., 263 Ala. 491, 83 So.2d 224 (1955). Even under prior Alabama law, of course, one could give notice at trial if there was no opportunity to do so before the trial. See Northern Alabama Ry. v. Key, 150 Ala. 641, 43 So. 794 (1907). See also C. Gamble, McElroy’s Alabama Evidence § 216.04(2) (4th ed. 1991) (absence of opportunity to give notice before trial).

The pivotal issues, under Rule 1004(3), are whether reasonable notice has been given and whether the opponent is in control of the original when the notice is given. The principles governing these issues are left to be evolved under prior and future Alabama case law.

Paragraph (3) applies to both civil and criminal cases. However, it makes no provision for the continuation of pre-rules Alabama authority for the proposition that the criminal prosecution may offer secondary evidence of an original that is in the possession of the accused or in the possession of an accomplice of the accused without having furnished notice to produce. This preexisting Alabama position has been based upon the recognition that both the accused and the accomplice have a constitutional right not to produce any evidence that would be self-incriminating. See Howton v. State, 391 So.2d 147 (Ala.Crim.App.1985); Dean v. State, 240 Ala. 8, 197 So. 53 (1940).

Paragraph (4). Collateral matters. The preference for originals is inapplicable if the writing is collateral to the primary or controlling issues in the case. Some originals simply are not important enough, as judged by the primary issues in the case, to require production or proof of unavailability before a party can present secondary evidence as to their contents. This paragraph conforms to preexisting Alabama law. See Schreiber v. Equico Lessors, 428 So.2d 69 (Ala.Civ.App.1983); Associates Capital Corp. v. Bank of Huntsville, 49 Ala.App. 523, 274 So.2d 80 (1973). See also C. Gamble, McElroy’s Alabama Evidence § 226.01(2) (4th ed. 1991).

Rule 1005. Public records.

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

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Because of the inconvenience of removing original public records from their respective repositories, Rule 1005 excuses their nonproduction. If the document qualifies as a public record, meaning that it is an official record or a document authorized to be recorded or filed and that it is actually recorded or filed, then its contents may be proven by a copy. Such a copy must be authenticated either by its being certified in compliance with Rule 902 or by the testimony of a witness who has compared it with the original. The rule expressly calls for the admission of data compilations in any form, thus providing the elasticity necessary to embrace computer records.

The present exception recognizes degrees of secondary evidence as to the contents of the original. This means that the offering party who wishes to prove secondary evidence of the document or record’s contents must first attempt to obtain a copy that is authenticated either by certification or by the testimony of a witness. Only if such a copy cannot be obtained with reasonable diligence is the offeror authorized to prove the contents by other secondary evidence.

Rule 1005, which is identical to its counterpart under the Federal Rules of Evidence, is consistent with preexisting practice in Alabama. Zinn v. State, 527 So.2d 148 (Ala.1988); Stevenson v. Moody, 85 Ala. 33, 4 So. 595 (1888). See C. Gamble, McElroy’s Alabama Evidence § 218.01 (4th ed. 1991). The courts of Alabama long have admitted a copy vouched for by a witness who has compared it with the original and who can testify that it is a correct copy of that original. See Miller v. Boykin, 70 Ala. 469 (1881). Customarily, however, the form of the evidence is a certified copy of the public record. Bentley v. State, 450 So.2d 197 (Ala.Crim.App.1984); Lidge v. State, 419 So.2d 610 (Ala.Crim.App.), cert. denied, 419 So.2d 616 (Ala.1982).

Rule 1006. Summaries.

The contents of voluminous writings which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

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Rule 1006 recognizes the dilemma presented when the originals are so many that their production and examination at trial would be impracticable. In such instances, a chart, summary, or calculation based upon the originals is admissible. As a safeguard on such admissibility, the originals or duplicates are to be made available so that the party opposing admissibility is afforded the right to examine and/or copy them at a reasonable time and place. This rule specifically provides that the judge may require that the originals or duplicates be produced in court.

Alabama evidence law has historically recognized a “voluminous records” exception to the best evidence rule. See Hunte v. Blake, 476 So.2d 75 (Ala.1985); Meriweather v. Crown Inv. Corp., 289 Ala. 504, 268 So.2d 780 (1972). No preexisting authority in Alabama refers to a discretionary power in the court to require the production of the originals or duplication of voluminous records. It remains, of course, a preliminary decision for the court as to whether the writings are indeed voluminous. See Ala.R.Evid. 1008.

Rule 1007. Testimony or written admission of party.

Contents of writings may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original.

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No accounting for the nonproduction of an original writing is necessary, as is customarily required by the best evidence principle, if the content of the original is proven by the testimony, deposition, or written admission of the party against whom the writing is offered. The admission, in order to satisfy the best evidence preference for the original, must be in writing or have been made in the course of the party’s giving testimony. Oral admissions, if not made while the admitting party is giving testimony, do not satisfy the rule’s requirement that the original’s nonproduction be accounted for as a condition precedent to the admissibility of secondary evidence of its contents.

The preexisting Alabama law in this area is not the model of clarity. See C. Gamble, McElroy’s Alabama Evidence §§ 227.01, 227.02 (4th ed. 1991). Like Rule 1007, however, historic Alabama practice has recognized that a party’s testimony, admitting the contents of an original, opens the door to secondary evidence of those contents, without an accounting for the nonproduction of the original. Donahay v. State, 287 Ala. 716, 255 So.2d 599 (1971); Kessler v. Peck, 266 Ala. 669, 98 So.2d 606 (1957).

Rule 1007 affirms that pre-rules authority in Alabama which declares that an oral, nontestimonial, admission disclosing a writing’s content is not admissible without an accounting for the nonproduction of the original. Ware v. Roberson, 18 Ala. 105 (1850); Morgan v. Patrick, 7 Ala.185 (1844). Contra Sally v. Capps, 1 Ala. 121 (1840). At the same time, however, it abrogates any preexisting Alabama authority holding that a party’s written admission of the contents of an original does not dispense with the necessity of proof as to the nonproduction of the original. Shorter v. Urquhart, 28 Ala. 360 (1856); Ware v. Roberson, 18 Ala. 105 (1850).

Rule 1008. Functions of court and jury.

When the admissibility of other evidence of contents of writings under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

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Throughout the best evidence provisions, preliminary conditions of fact are specified as precedent to the admission of any secondary evidence showing the contents of an original writing. Rule 1004(1), for example, allows secondary evidence as to the contents of an original that is shown to be lost. The sufficiency of a factual showing that the original has been lost is a preliminary question for the court. The court’s determination, as to that sufficiency, is made in conformance with the provisions found in Ala.R.Evid. 104.

Even after a party has made a factual showing that an item has been lost, or has made a factual showing regarding some other justification for admitting secondary evidence, and the court, acting in accordance with Rule 104, has held that factual showing to be sufficient, so that the secondary evidence of the original’s content is admissible, other factual issues may yet be raised which are to be determined by the trier of fact. Whether the asserted writing ever existed, for example, is such an issue. Additionally, the trier of fact is to make the ultimate finding of fact as to whether another offered writing is the original or whether other evidence of contents correctly reflects the true contents. These determinations by the trier of fact are to be made in the same manner as other determinations of fact are made.

Rule 1008 is consistent with preexisting Alabama evidence law. The sufficiency of proof as to the original’s being lost, for example, historically has been committed to the discretion of the trial judge. Bradley v. Nall, 505 So.2d 1062 (Ala.1987); Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972). See C. Gamble, McElroy’s Alabama Evidence § 214.01 (4th ed. 1991). Rule 1008 is likewise consistent with Alabama’s preexisting principle that preliminary issues of fact are generally for the trial judge while questions regarding the ultimate weight are for the trier of fact. Bennett v. State, 46 Ala.App. 535, 245 So.2d 570 (1971); Burton v. State, 107 Ala. 108, 18 So. 284 (1895), overruled by Martin v. Martin, 123 Ala.191, 26 So. 525 (1899). See C. Gamble, McElroy’s Alabama Evidence § 464.01 (4th ed. 1991).

Rule 1101. Rules applicable.

(a)   General applicability. Except as otherwise provided by constitutional provision, statute, this rule, or other rules of the Supreme Court of Alabama, these rules of evidence apply in all proceedings in the courts of Alabama, including proceedings before referees and masters.

(b)   Rules inapplicable. These rules, other than those with respect to privileges, do not apply in the following situations:

(1)   PRELIMINARY QUESTIONS OF FACT. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104.

(2)   GRAND JURY. Proceedings before grand juries.

(3)   MISCELLANEOUS PROCEEDINGS. Proceedings for extradition or rendition; preliminary hearings in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.

(4)   CONTEMPT PROCEEDINGS. Contempt proceedings in which the court may act summarily.

Advisory Committee’s Notes

Most states adopting modern evidence codes have modeled their corresponding rule after the language found in Uniform Rule of Evidence 1101. See G. Joseph & S. Saltzburg, Evidence in America: The Federal Rules in the States § 73.2 (1987). This has been done because the terminology found in Fed.R.Evid. 1101 is so specifically tailored to apply exclusively to federal courts and proceedings. Following the lead of that majority of states adopting modern evidence codes, the committee has based this Rule 1101 upon its counterpart under the Uniform Rules of Evidence.

Section (a). General applicability. This rule does not declare these rules of evidence applicable in proceedings in which evidence rules historically have not been applied. Rather, the intent is to make the Alabama Rules of Evidence applicable to the same proceedings that were governed by the general law of evidence at the time of their adoption. This means, consequently, that these rules will govern the following illustrative proceedings, just as the general law of evidence did before the adoption of these rules: (1) nonjury cases, see Arant v. Grier, 286 Ala. 263, 239 So.2d 188 (1970) (recognizing that evidence rules do apply in nonjury cases even though a presumption of correctness arises on appeal as to the trial court’s evidentiary findings); C. Gamble, McElroy’s Alabama Evidence § 6.05 (4th ed. 1991); (2) criminal cases, as well as civil cases, see Ala.R.Crim.P. 19.2(a) (providing that, except as otherwise provided by law, the law of evidence relating to civil actions shall apply to criminal proceedings); and (3) workers’ compensation cases, see Ala. Code 1975, § 25-5-81 (providing that workers’ compensation cases shall be heard and determined in circuit court upon the same basis as a civil tort action). See also Ala. Small Claims R. J (providing that small claims judges may “relax the rules of evidence” and thus implying that the rules of evidence otherwise apply to a small claims proceeding); Ala. Code 1975, § 12-13-12 (stipulating that statutory rules of evidence, “so far as the same are appropriate,” are applicable in probate court). These rules in no way change preexisting law regarding the applicability of evidence rules in the probate court.

This rule recognizes that specialized proceedings may arise under statute or rule of court in which these Alabama Rules of Evidence, either in whole or in part, are made inapplicable. Additionally, these rules would not govern in a setting where constitutional rights dictate otherwise.

These rules apply to qualifying proceedings whether presided over by judges, referees, or masters. See Ala. Code 1975, § 12-17-330 (providing for the appointment of referees to serve in connection with juvenile cases); Ala.R.Civ.P. 53(c) (conferring upon standing or special masters the power to rule upon evidence, put witnesses on oath, conduct examination, and, when requested, make a record of the evidence).

Section (b). Rules inapplicable. All evidentiary privileges are applicable at all stages of all proceedings. See Fed.R.Evid. 1101(c). Stated otherwise, section (b) is based upon the premise that “confidentiality once destroyed cannot be restored, and that a privilege is effective only if it bars all disclosure at all times.” J. Weinstein & M. Berger, 5 Weinstein’s Evidence ¶ 1101[03], at 1101-21 (1993). See also Armour Int’l Co. v. Worldwide Cosmetics, Inc., 689 F.2d 134 (7th Cir.1982) (Rule 501 privileges held applicable to discovery proceedings); Appeal of Malfitano, 633 F.2d 276 (3d Cir.1980) (privilege rule continues to apply to grand jury proceedings).

As does Rule 1101(b) of the Uniform Rules of Evidence, section (b) recognizes proceedings in which these rules of evidence do not apply and dedicates a subsection to each. As stated by the Advisory Committee on the Federal Rules of Evidence, these exceptions are not intended “as an expression as to when due process or other constitutional provisions may require an evidentiary hearing.” Fed.R.Evid. 1101(d) advisory committee’s note.

Subsection (b)(1). Preliminary questions of fact. This subsection is identical to its counterpart under the Federal Rules of Evidence. As a convenience to the users of these rules, this subsection merely restates the principle found in the second sentence of Ala.R.Evid. 104(a). This concept, stated in summary fashion here, is that the rules of evidence do not apply when the judge is determining a fact question that is preliminary to the admissibility of evidence; this concept is exemplified by such a factual determination as the existence of a privilege. See Ala.R.Evid. 104(a) advisory committee’s notes; C. Gamble, McElroy’s Alabama Evidence § 464.01 (4th ed. 1991).

Subsection (b)(2). Grand jury. This subsection is identical to Rule 1101(b)(2) of the Uniform Rules of Evidence. It conforms to preexisting Alabama authority standing for the proposition that evidence law is inapplicable to grand jury proceedings. Wright v. State, 421 So.2d 1324 (Ala.Crim.App.1982). See C. Gamble, McElroy’s Alabama Evidence § 6.03 (4th ed. 1991). There is no intent that this rule should affect the separate statutory rule that the grand jury must have had for its consideration at least one witness who gave testimony or one piece of legal documentary evidence. Ala. Code 1975, § 12-16-200. Indeed, subsection (b)(2) was not drafted to deal with the quantum or quality of evidence required to support a grand jury indictment. The Alabama Rules of Criminal Procedure perpetuate the concept, found in Ala. Code 1975, § 12-16-200, that the grand jury may consider only evidence given by witnesses before it or legal documentary evidence. Such legal evidence, according to Ala.R.Crim.P. 12.8(f)(1), may consist of hearsay. An indictment is not subject to dismissal for being based upon illegal evidence unless such evidence constitutes the sole basis for it. Ala.R.Crim.P. 12.8(f)(2). See Fikes v. State, 263 Ala. 89, 81 So.2d 303 (1955) (holding that, if legal evidence is presented to the grand jury, then the indictment is not to be quashed on the basis that there also was illegal evidence presented).

This position, that these Alabama Rules of Evidence do not apply to grand jury proceedings, is consistent with the prevailing federal view. See 1 J. Wigmore, Wigmore on Evidence § 4(5), at 21 (Tillers rev. 1983). Compare Fed.R.Evid. 1101(d)(2).

Subsection (b)(3). Miscellaneous proceedings.

Proceedings for extradition or rendition. This provision reflects the preexisting law that extradition proceedings, in which fugitive rendition warrants are considered, are largely administrative in nature and, consequently, are not governed by rules of evidence. Rayburn v. State, 366 So.2d 698 (Ala.Crim.App.), aff’d, 366 So.2d 708 (Ala.1979) (indeed, evidence of guilt or innocence in such proceedings would be irrelevant except insofar as it would assist in identifying the person charged). This, of course, is not to ignore the fact that there are statutory requirements that must be met, as regards the nature of the underlying documents, for there to be probable cause for detaining an alleged fugitive from another state. See Ala. Code 1975, § 15-9-31; Shirley v. State, 363 So.2d 104 (Ala.), rev’g 363 So.2d 103, on remand, 363 So.2d 107 (Ala.Crim.App.1978).

Preliminary hearings in criminal cases. Like its counterpart under the Uniform Rules of Evidence, this provision exempts preliminary hearings in criminal cases. While there is little direct authority to reflect it, present practice is that the rules of evidence do not apply to preliminary hearings in criminal cases. See United States v. Smith, 577 F.Supp. 1232, 1234 (S.D.Ohio 1983) (Federal Rules of Evidence held not applicable to preliminary hearing); A. Goldenstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1168 (1960); F. Palmer, Comment, Preliminary Examination – Evidence and Due Process, 15 Kan.L.Rev. 374, 379 (1967). While the rules of evidence as a whole are inapplicable to preliminary hearings, selective rules do apply, as otherwise provided in the Alabama Rules of Criminal Procedure. See Ala.R.Crim.P. 5.3(a) (authorizing the accused to introduce evidence in the accused’s own behalf relevant to the issue of probable cause); Ala.R.Crim.P. 5.3(c) (while court’s finding must be based on “substantial” evidence, such evidence may be in the form of hearsay). See also Ala. Code 1975, §§ 15-11-6, 15-11-8, 15-11-9.

Sentencing, or granting or revoking probation. Traditionally, rules of evidence have been held not to govern sentencing and probation proceedings except as otherwise provided by statute or rule of court. Rule 1101, except as to the assertion of privileges, is intended to continue that principle of inapplicability. See Ala. Code 1975, § 13A-5-45(d) (providing that any evidence that has probative value and that is relevant to sentencing shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements); Ala.R.Crim.P. 26.6(b)(2) (outlining guiding principles of evidence to be used in sentencing hearing, with ending proviso that the court may receive any evidence it deems probative “regardless of its admissibility under the rules of evidence”); Ala. Code 1975, § 15-22-50 (dealing with a court’s power to suspend sentence and grant probation); Ala. Code 1975, § 15-22-54 (regarding the power to extend or terminate probation). See also Williams v. New York, 337 U.S. 241 (1949) (observing that due process does not require confrontation or cross-examination in sentencing or passing on probation; trial judge characterized as possessing broad discretion as to the sources and types of information relied upon); Chandler v. United States, 401 F.Supp. 658 (D.N.J.1975), aff’d, 546 F.2d 415 (3d Cir.1976), cert. denied, 430 U.S. 986 (1977); United States v. Francischine, 512 F.2d 827 (5th Cir.), cert. denied, 423 U.S. 931 (1975) (except for evidentiary privileges, rules of evidence are inapplicable to probation revocation proceedings).

Issuance of warrants for arrest, criminal summonses, and search warrants. Arrest warrants, criminal summonses, and search warrants are issued upon complaint or affidavit showing probable cause. The nature of these proceedings is not adversarial in the traditional sense. Consequently, it would be both inappropriate and impracticable to apply the formal rules of evidence to such proceedings. In this regard, the Alabama Rules of Evidence continue prior Alabama practice. See Jackson v. State, 534 So.2d 689 (Ala.Crim.App.1988). See also C. Gamble, McElroy’s Alabama Evidence § 334.01(2) (4th ed. 1991) (search incident to a valid warrant); Ala. Code 1975, § 15-5-1 et seq. (dealing with the prerequisites for issuing a search warrant); Ala.R.Crim.P. 3.9(b) (providing that finding of probable cause for search may be based upon hearsay evidence).

Proceedings with respect to release on bail or otherwise. As does Fed.R.Evid. 1101(d)(3) and Unif.R.Evid. 1101(b)(3), this rule follows present practice to the effect that rules of evidence are inapplicable to proceedings regarding bail. See Ala. Code 1975, § 15-13-4 (generally providing that judges and magistrates should ensure, where the law authorizes bail, that every prisoner has an opportunity to give bail); Ala. Code 1975, § 15-3-2 (right to bail); Ala. Const. Art. I, § 16 (providing that all persons, before conviction, are bailable except for capital offenses). See also Ala.R.Crim.P. 7.2 (describing matters that court may take into account in deciding whether to release an accused on bond or personal recognizance); Ala.R.Crim.P. 7.4 (describing procedure for determination of release conditions).

Subsection (b)(4). Contempt proceedings. This subsection, like its counterpart under the Uniform and Federal Rules of Evidence, recognizes that the rules of evidence apply in all contempt proceedings save those in which the judge may act summarily. See Fed.R.Evid. 1101(b); Unif.R.Evid. 1101(b)(4). Summary action may be taken when the contempt is within the judge’s actual sight and hearing. See Ala.R.Crim.P. 33.2(a); Ala.R.Civ.P. 70A(b). Such contempt is referred to as “direct contempt.” Ala.R.Crim.P. 33.1(b) and Ala.R.Civ.App. 70A(a)(2)(A) (defining “direct contempt” and contrasting it with “constructive contempt”). It is said that, in such instances of direct contempt, no further or extrinsic evidence is needed to show the judge what in fact occurred; consequently, application of the rules of evidence is unnecessary). See Ala.R.Crim.P. 33.1 committee comments; In re Heathcock, 696 F.2d 1362 (5th Cir.1983) (citing Rule 42(a) of the Federal Rules of Criminal Procedure for principle that policy of summary contempt power is to provide the court with an immediate means of discipline in order to vindicate and preserve the authority of the court); Graham v. State, 427 So.2d 998, 1006 (Ala.Crim.App.1983) (recognizing that direct contempt, justifying the court’s acting summarily, arises when “the personal knowledge of the trial judge, in whose presence the contemptuous conduct occurred, substitutes for evidence”) (emphasis added).

Rule 1102. Title.

These rules shall be known as the Alabama Rules of Evidence and may be cited as Ala.R.Evid.

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The official citation to the Alabama Rules of Evidence will be Ala.R.Evid. Compare Fed.R.Evid. 1103. No rule comparable to Fed.R.Evid. 1102, dealing with amendments, was thought necessary, because of the Alabama Supreme Court’s acknowledged power to make and amend rules.

Rule 1103. Effective date.

(a)   The Rules. In a proceeding to which Rule 1101 would make these rules applicable, these rules shall apply if the proceeding begins on or after January 1, 1996.

(b)   Amendments to the Rules and Adoption of New Rules. In a proceeding to which Rule 1101 would make these rules applicable, an amendment to these rules or the adoption of a new rule shall apply if the proceeding begins on or after the effective date of the amendment or adoption.

[Amended 8-15-2013, Eff. 10-1-2013.]

Court Comment

Rule 1103 provides a general effective date of January 1, 1996. By the terms of Rule 1103, however, these rules will have no application in a proceeding begun before January 1, 1996, and completed on or after that date. A proceeding, for purposes of this rule, shall be understood to mean a proceeding at which evidence is to be presented. The commencement of an action is not the commencement of a “proceeding.”

Advisory Committee’s Notes to Amendment to Rule 1103 Effective October 1, 2013

The amendment divides Rule 1103 into two sections. The original content of Rule 1103, which provided a general effective date for the Alabama Rules of Evidence, has been placed unchanged in section (a). A new section (b) has been added to Rule 1103, which addresses to which “proceedings” amendments to the Alabama Rules of Evidence or a new rule will apply, based on the effective date of the amendment or the adoption of a new rule.

Section (b) provides that amendments to the rules of evidence and new rules shall apply to any “proceeding” begun on or after the effective date of the amendment or adoption, without regard to when the action was filed. Conversely, an amendment or new rule will have no application in a “proceeding” begun before the effective date of the amendment or adoption and completed on or after that date. As noted in the Court Comment that accompanied the original rule: ”A proceeding, for purposes of this rule, shall be understood to mean a proceeding at which evidence is to be presented. The commencement of an action is not the commencement of a proceeding.” See also Smith v. State, 797 So. 2d 503, 531 n.9 (Ala. Crim. App. 2000) (noting that Ala. R. Evid. 614(b) did not apply because defendant’s trial ended before January 1, 1996, the effective date of the Rules of Evidence); Ex parte Woodall, 730 So. 2d 652, 661 n.3 (Ala. 1998) (”We note that the trial in this case began before January 1, 1996; therefore, the Alabama Rules of Evidence do not apply.”); and 1 C. Gamble & R. Goodwin, McElroy’s Alabama Evidence § 1.02 (6th ed. 2009) (”[T]he Alabama Rules of Evidence apply to a proceeding held on or after January 1, 1996, even though the action itself was filed or commenced prior to this date.”).

Note from reporter of decisions: The order amending Rule 404(a), Rule 405(a), Rule 407, Rule 408, Rule 412, Rule 510, Rule 608(b), Rule 703, Rule 801(d), Rule 803(6), Rule 804(b), and Rule 1103, Ala. R. Evid., and adopting Rule 902(11) and (12), Ala. R. Evid., and the Advisory Committee’s Notes to the amendment or adoption of these rules, effective October 1, 2013, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 3d.