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Birmingham Bar Association Bulletin - Summer 2014

Evidence Kerra K. Hicks; Balch & Bingham LLP Recent Amendments to the Alabama Rules of Evidence A Supreme Court of Alabama Order, issued on August 15, 2013, ratified numerous substantive amendments to the Alabama Rules of Evidence. Effective October 1, 2013, the following rules have been substantively amended: 404(a), 405(a), 407, 408, 412, 510, 608(b), 703, 801(d), 803(6), 804(b), and 1103. Rule 404(a). Rule 404(a)(1) has been amended in two ways. First, the amendment seeks to clarify that the “mercy rule,” which permits a criminal defendant to present evidence of certain character traits in his defense, has no applicability to civil cases. Next, (a)(1), as revised, permits the prosecution, upon attack of the victim’s character by the defense, to introduce evidence attacking the same character trait in the defendant. Prior to the amendment, (a)(1) did not permit the prosecution to present evidence in degradation of the defendant’s character unless the defense first presented evidence of his good character. The amendment serves to even the playing field as to the admissibility of character evidence in a criminal case. As a corollary in the civil context, Rule 404(a)(2)(B) has been amended to provide a similar sense of “fairness” in regard to the presentation of character evidence. Under the revised rule, a civil party who claims self-defense is permitted to present evidence of the assault victim’s propensity for violence. However, should that party choose to do so, the amended rule additionally provides that the opposing party may respond with evidence of the assaulting party’s character for violence which may then be rebutted by the alleged assaulter’s character for peacefulness. The amendments to Rule 404(a) strive to permit the parties, in both criminal and civil cases, a fair opportunity to defend and properly respond to the presentation of character evidence. 405(a). As amended, Rule 405(a) permits a criminal defendant, when exercising his right to present character evidence in his defense under the 404(a)(1) “mercy rule,” to utilize opinion evidence as an alternative to reputation evidence. Under the prior rule, the only medium available to prove character was that of reputation, and this prior limitation effectively rejected the rule’s Federal counterpart. In addition to the criminal defendant’s ability to use opinion testimony of his character in his defense under the new rule, the prosecution may also employ such evidence in its rebuttal of the defendant’s presentation. The rule does not, however, change the notion that the rebuttal is limited in scope to the scope of the defendant’s presentation. 407. The Alabama amendment to the rule dealing with subsequent remedial measures is identical to that of the Federal rule in 1997. First, the language “an injury or harm allegedly caused by” is added to clarify that the remedial measure must have taken place after the occurrence of the damage giving rise to the action. Measures taken, or changes made, prior to the event causing injury do not fall within the scope of a Rule 407 exclusion. Next, the rule is revised to explicitly state that evidence of subsequent remedial measures is not admissible to prove a defect in a product or design or a need for a warning or instruction. This amendment embodies the majority position on the exclusion of evidence relating to such measures. 408. Identical to its Federal counterpart until the Federal rule was amended in 2006, the amendment to Alabama Rule of Evidence 408 incorporates two of the three Federal changes. First, the revised rule prohibits evidence of 12 Birmingham Bar Association


Birmingham Bar Association Bulletin - Summer 2014
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