By Terrence W. McCarthy and Allison R. Bendall
The Alabama Rules of Evidence did not become effective until January 1, 1996, nearly 200 years after the Alabama court system was created. For many decades, Alabama evidence law was found in the case law, statutes, and the constitutions of both Alabama and the United States. As time passed, rules of court, such as the Alabama Rules of Criminal Procedure and the Alabama Rules of Civil Procedure, were added as additional sources of Alabama evidence law.
The Federal Rules of Evidence became effective in 1975, which was the culmination of a national movement to codify evidence law. In the years that followed, most states adopted state rules of evidence patterned largely after the federal rules. Alabama was one of those states. A 23-member Alabama Rules of Evidence advisory committee, under the leadership of Dean Charles Gamble, held its first of many meetings on September 9, 1988. After many years of hard work, debate, hearings, public comment, and revised drafts, the Alabama Supreme Court adopted the original Alabama Rules of Evidence with an effective date of January 1, 1996. Many (and probably most) of the rules merely codified pre-existing case law and/or statutes, but several of the rules altered pre-existing evidence law.
The Alabama Rules of Evidence have been changed on three occasions since their adoption. First, effective January 1, 2012, the Alabama Supreme Court amended Rule 702 to adopt Daubert v. Merrill Dow Pharms., Inc. as the standard for scientific expert testimony. Second, several rules were amended or added with an effective date of October 1, 2013. Third, several changes were made to the rules and advisory committee’s notes with an effective date of January 30, 2020.
Tips for the Alabama Lawyer
With this backdrop, the following are some key points that an Alabama practitioner needs to know when faced with evidence issues in an Alabama state court:
- Evidence Law Outside the Rules of Evidence Remains Critical. One of the main goals of the original drafters was to minimize the number of times a lawyer had to look outside of the rules themselves to find a rule of evidence. However, there are still many examples of where the answer to an evidence question continues to be found in a statute, rule of court, Alabama’s state constitution, or the United States Constitution. In fact, the rules of evidence themselves tell us this in several places.
- Beware of Pre-Existing Case Law and Statutes Inconsistent with the Rules. Cases and statutes that pre-date the Alabama Rules of Evidence that are consistent with the Alabama Rules of Evidence continue to be in full force and effect. Pre-existing cases and statutes that are inconsistent with the Alabama Rules of Evidence, however, are no longer in full force and effect. It is not always easy to determine which cases and statutes have been abrogated, but a search of the advisory committee’s notes is a good start. For example, Section 12-21-162(a) of the Alabama Code provides that a witness who has been convicted of perjury or subordination of perjury is incompetent to be a witness. The advisory committee’s notes to Rule 601 state that this statute was superseded with the passage of Rule 601.
- Be Careful Not to Rely on Old Evidence Resources. As addressed above, the original Alabama Rules of Evidence changed pre-existing evidence law in several ways, and they have been changed three times since adoption. Relying on cases and books that pre-date those changes can be dangerous. For example, Rule 703 was amended in 2013 to provide that experts can base opinions on inadmissible facts or data if of a type reasonably relied upon by other experts in that field. Pre-existing case law says otherwise, but it is no longer applicable.
- There Are Several Notable Differences Between the Alabama and Federal Rules. While the Alabama Rules of Evidence are patterned after the federal rules, there are several critical differences between the two sets of rules. A few examples:
- Rule 106. This rule, often called the “rule of completeness,” generally provides that when a party introduces part of a writing or recorded statement, the adverse party may require other parts to be introduced at that time, if fairness calls for them to be considered contemporaneously. The corresponding federal rule would allow for the admission of a separate writing or recorded statement. Alabama rejected that rule and requires it to be the same writing or recorded statement.
- Rule 804(b)(1). This rule provides a hearsay exception for former testimony when the witness is unavailable and certain conditions are met. In a civil case in Alabama, both the offering party and the party against whom the testimony is offered must either have been a party to the proceeding when the former testimony was given or have a predecessor in interest who was such a party. Under the corresponding federal rule, there is no such “identity of parties” requirement for the offering party, and the federal “predecessor in interest” requirement for the party against whom the testimony is offered is more liberal.
- Rule 702. In Alabama, the Daubert standard for expert witnesses applies only to scientific expert testimony. Under the federal rules, the Daubert standard applies to all experts.
True, the advisory committee’s notes to the federal rule, and cases interpreting the corresponding Federal Rules of Evidence, can generally be considered persuasive authority in Alabama. But that is certainly not the case when the Alabama and federal rules differ. As such, it is critical for the lawyer practicing in Alabama state court to be familiar with these differences.
Because formal legal education tends to focus on the Federal Rules of Evidence, it is important for Alabama lawyers to familiarize themselves with the history of, revisions to, and key differences found in the Alabama Rules of Evidence. Alabama lawyers should not fall into the trap of relying on sources of persuasive authority relating to the Federal Rules of Evidence that are inconsistent with their Alabama counterparts. Further, attorneys practicing in Alabama must be careful to not rely on old sources of law abrogated by the initial enactment of the Alabama Rules of Evidence or any subsequent revisions.
 Charles W. Gamble, Drafting, Adopting and Interpreting the New Alabama Rules of Evidence: A Reporter’s Perspective, 47 Ala. L. Rev. 1, 1 (1995).  Id. at 3.  Id. at 4.  Compare Ala. R. Evid. 412 (codifying Ala. Code § 12-21-203(1975)), with Ala. R. Evid. 601 (superseding Ala. Code § 12-21-163(1975)).  See Ala. R. Evid. 702(b) (adopting Daubert, 509 U.S. 579 (1993)); Ala. R. Evid. 702 advisory committee’s note to 2012 amendment.  Charles W. Gamble, Terrence W. McCarthy & Robert J. Goodwin, Gamble’s Alabama Rules of Evidence, § 1103 (3d ed. 2014). The rules that were amended or added were Rules 404(a); 405(a); 407; 408; 412; 510(b); 608(b); 703; 801(d)(1)(C); 801(d)(2); 803(6); 804(b)(2); 804(b)(5); 902(11); 902(12); and 1103.  Charles W. Gamble, Robert J. Goodwin & Terrence W. McCarthy, An Overview of the 2020 Amendments to the Alabama Rules of Evidence, 81 Ala. Law. 350 (2020). Two new sections to Rule 902 (Rules 902(13) and 902(14)) were added. Additionally, amendments were made to Rule 803(16) and the advisory committee’s notes to Rules 503A(d)(3), 803(7) and 803(8).  See Gamble, supra note 3, p. 8.  Id.  See e.g., Ala. R. Evid. 402 (stating that relevant evidence may be excluded except as provided in the federal or state constitutions, the rules of evidence, rules of court, or statutes); Ala. R. Evid. 802 (stating that hearsay is not admissible except as provided by the rules of evidence, other rules of court, or statute); Ala. R. Evid. 901(b)(10) & 902(10) (recognizing that methods of authentication can be found in statutes and other rules of court).  Ala. Code § 12-21-162(a).  Ala. R. Evid. 601 advisory committee’s notes.  Id. at. 703 advisory committee’s notes to 2013 amendment.  Id. at 106.  Id. at 106.  Id. at 106.  Id. at. 804(b)(1).  Gamble, McCarthy & Goodwin, supra note 8, § 804(b)(1), Practice Pointer 6.  Fed. R. Evid. 804(b)(1).  Ala. R. Evid. 702 advisory committee’s notes to 2012 amendment; Daubert, 509 U.S. 579 (1993).  See Fed. R. Evid. 702 advisory committee’s notes to 2012 amendment (clarifying “the amendment does not distinguish between scientific and other forms of expert testimony. The trial court's gatekeeping function applies to testimony by any expert.”) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999)).  See Ala. R. Evid. 102 advisory committee’s notes (“The committee assumes, consequently, that cases interpreting the Federal Rules of Evidence will constitute authority for construction of the Alabama Rules of Evidence.”).  In addition, Alabama courts are not bound by the federal cases or federal advisory committee’s notes. In fact, on at least one occasion, the Alabama Supreme Court has expressly rejected the federal case law and advisory committee’s notes for a rule that was patterned after the federal rule. See Ex parte Byner, 270 So. 3d 1162, 1169 (Ala. 2018) (stating that while cases construing the Federal Rules of Evidence are persuasive authority, they are not mandatory authority; rejecting federal cases and advisory committee’s notes and holding that robbery is a Rule 609(a)(2) crime of dishonesty or false statement useable for impeachment purposes). -30-