Alabama Rules of Evidence

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).