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Birmingham Bar Association Bulletin - Summer 2014

Evidence when a motion to present such evidence is filed. Note that the Federal rule requires that the party filing the motion notify the victim, not always the prosecution as the amended Alabama rule now requires. 510. The amendments to Rule 510, waiver of privilege by voluntary disclosure, seek to cohesively interact with the revisions made to the Rules of Civil Procedure in 2010 “to accommodate the discovery of electronically stored information (ESI),” and to “align Alabama law with Federal Rule of Evidence 502.” Rule 510(b)(1) deals with the effect of an intentional disclosure of otherwise privileged information on undisclosed communications or information. The rule embodies the subject matter waiver and, in concepts of fairness, precludes a party’s selective waiver by mandating disclosure of related communications or information to allow the adversary and fact finder a fair and complete access to all pertinent information. This triggered disclosure under the amended rule will prohibit the presentation of one-sided and misleading evidence. The initial disclosure must be intentional for subject matter waiver under (b)(1) to apply. As for an inadvertent disclosure of otherwise protected communications or information under 510(b)(2), the disclosure will not result in waiver as long as proper precautions were taken to prevent disclosure, and upon disclosure, reasonable steps were promptly taken to “rectify the error.” The standard for the test under (b)(2) is purposefully flexible according to the Committee Notes, and the Notes additionally emphasize that (b)(2) should be secondary to any applicable court order pertaining to disclosure or agreement between the parties concerning the same. If the disclosure is made in federal continued on page 32 someone other than the accused was the source of the physical evidence when the prosecution asserts that the defendant was the source. Next, under (b)(2), evidence of specific instances of sexual behavior of the victim with the accused may be presented by the defendant as proof of consent, or may be offered by the prosecution. The (b)(2) exception permits the defendant to present evidence, not only of specific sexual activity of the victim with the accused, but also any statements of the victim regarding an intent to engage in sexual behavior with the accused. As for the prosecution’s utilization of the (b)(2) exception, the Notes to the amendment of the rule permit the prosecution to use specific instances of the accused’s uncharged acts with the victim to show a pattern of behavior. Finally, pursuant to the (b)(3) exception, evidence of a victim’s “other sexual behavior” or “sexual predisposition” will not be excluded if it would violate the constitutional rights of the defendant. 412(c) promulgates the procedures which must be followed in the determination of whether evidence is admissible under any of the (b) exceptions outlined above. As amended, the rule requires that the motion regarding the evidence at issue contain a more specific description of the evidence and its proffered purpose than was required under the rule’s previous version. Additionally, the requisite motion is to be filed “a reasonable time before trial,” whereas, the prior language only mandated that the motion be filed prior to the defense’s attempt to introduce the evidence. In the event the motion is not filed within the “reasonable time” prior to trial, the amended rule permits a later filing upon a showing of “good cause.” And, as a completely new aspect of the procedural requirements of 412, the prosecution is required to notify the victim compromise “on behalf of any party.” The effect of this change is to render any evidence of settlement offers or statements made in negotiations even when a party wishes to present its own statements as evidence. Second, the amended rule excludes the use of evidence of compromise “when offered to impeach through a prior inconsistent statement or contradiction.” As a matter of public policy, the amendment seeks to prevent such a use in order to encourage parties to engage in frank and open discussions related to settlement possibilities. 412. Although strikingly similar to Federal Rule 412, amended Alabama Rule 412, which relates to the admissibility of evidence relating to past sexual behavior of the complaining witness in the prosecution for criminal sexual conduct, differs from its Federal companion in that the State rule’s applicability is limited to criminal cases and only protects the “complaining witness.” Amended Rule 412(a) bars the admission of evidence of both “other sexual behavior” of the victim, as well as evidence of the victim’s “sexual predisposition.” The amended rule’s definition of “other sexual behavior” is broad and applies not only to actual physical conduct, but also to any form of implication of sexual behavior. The rule’s prohibition on evidence of the victim’s “sexual predisposition” serves to extend the reach of the exclusion and bars evidence of the victim’s “mode of dress, speech, or lifestyle.” 412(b) pertains to the exceptions to the general bar of evidence of the victim’s sexual behavior or predisposition, and, as amended, sets out three exceptions identical to those found in the Federal rule. First, (b)(1) permits evidence of a specific instance of the victim’s “other sexual behavior” in order to prove that Birmingham Bar Bulletin/ Summer 2014 13


Birmingham Bar Association Bulletin - Summer 2014
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