Alabama Rules of Evidence

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.

---

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.

---

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.

---

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.]

---

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.

---

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.]

---

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.]

---

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.

---

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.

---

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.]

---

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.