Alabama Rules of Evidence

Rule 601. General rule of competency.

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

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

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

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

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

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

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

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

Rule 602. Lack of personal knowledge.

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

---

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

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

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

Rule 603. Oath or affirmation.

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

---

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

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

Rule 604. Interpreters.

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

---

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

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

Rule 605. Competency of judge as witness.

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

---

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

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

Rule 606. Competency of juror as witness.

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

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

---

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

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

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

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

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

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

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

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

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

Rule 607. Who may impeach.

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

---

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

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

Rule 608. Evidence of character and conduct of witness.

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

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

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

---

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rule 609. Impeachment by evidence of conviction of crime.

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

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

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

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

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

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

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

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

---

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

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

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

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

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

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

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

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

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

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

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

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

Rule 610. Religious beliefs or opinions.

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

---

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

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

Rule 611. Mode and order of interrogation and presentation.

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

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

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

---

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

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

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

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

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

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

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

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

Rule 612. Writing used to refresh memory.

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

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

---

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

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

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

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

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

Rule 613. Prior statements of witnesses.

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

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

---

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

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

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

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

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

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

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

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

Rule 614. Calling and interrogation of witnesses by court.

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

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

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

---

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

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

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

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

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

Rule 615. Exclusion of witnesses.

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

---

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

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

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

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

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

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

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

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

---

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

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