Alabama Rules of Evidence
Article I. General Provisions
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.
Advisory Committee’s Notes
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.
Advisory Committee’s Notes
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.
Advisory Committee’s Notes
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.
Advisory Committee’s Notes
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.
Advisory Committee’s Notes
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.
Advisory Committee’s Notes
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.