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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, continued from page 13 levels of hearsay within a record, remain, and the amendment does not grant carte blanche admissibility. 804(b). The amendment to 804(b)(2) simply permits the hearsay exception pertaining to a statement made under belief of impending death to be utilized in both civil and criminal cases. 804(b)(5) has been added to the rule to prohibit a party from objecting on hearsay grounds when the objecting party’s wrongdoing is the cause of the declarant’s unavailability. While its Federal counterpart, 804(b)(6), which prohibits a party from objecting when the objecting party “caused—or acquiesced in wrongfully causing” the declarant’s unavailability, the amended Alabama rule leaves the interpretation of “wrongdoing” to the court. 1103. Rule 1103, as amended, is two parts. The first part remains unchanged from the prior version and provides a general rule for the effective date of the Rules of Evidence. The second part addresses the application of the amended and new rules to proceedings that may have been filed prior to the effective date of the amendments or additions. According to the rule, the amendments and new rules apply to proceedings initiated on or after the effective date, regardless of when the action was filed. Similarly, the amendments and new rules do not apply to any proceeding which began prior to the effective date. G Kerra is an associate with Balch & Bingham LLP and is a member of the Products Liability and Casualty practice group in the firm’s Litigation Section. Contributor Kerra K. Hicks court or in another state, 510(b)(3) operates to eliminate any waiver within an Alabama proceeding if the disclosure either wouldn’t be a waiver under Alabama Rule of Evidence 510 or if it was not a waiver under the applicable law of the jurisdiction in which the disclosure occurred. As it corresponds to Federal Rule 502(c), the general concept of 510(b)(3) is that “the law that is the most protective of privilege and work-product should be applied.” 510(b)(4) and (b)(5), like their Federal counterparts, extend the effect of a court’s confidentiality order to nonparties and recognize the parties’ ability to enter into an agreement concerning the effect of disclosure of protected communications or information. 608(b). The amendment to Alabama’s rule concerning evidence of the character and conduct of a witness serves to track the 2003 amendment to the rule’s Federal corollary. The prior version’s use of “credibility” has been replaced with “character for truthfulness.” According to the Committee Notes, this amendment intended to clarify that the prohibition on questioning a witness on cross-examination about unconvicted misconduct applies only when such testimony of the witness would be probative of his character for truthfulness. As a result, presentation of evidence or asking a witness about misconduct is permitted if it is relevant, and permitted as impeachment or substantive evidence. 703. Two new sentences have been added to the rule concerning the bases of opinion testimony by experts. These additions “are taken verbatim from Rule 703 of the Federal Rules of Evidence and make the Alabama Rule identical to its Federal counterpart.” Essentially, the rule, as amended, no longer requires the evidence relied on by experts to form their opinions be admitted into evidence. This newfound permission is granted with the caveat that the information relied on be that which is normally and customarily relied on by other experts in the field, and such reliance must be reasonable. The final sentence of the amended rule serves to emphasize that inadmissible information reasonably relied on by an expert does not transform into admissible evidence simply because the expert’s opinion is admissible. 801(d). Rule 801(d)(1)(C) has been added to include a prior statement by a witness “of identification of a person made after perceiving the person” as nonhearsay. Although Alabama previously rejected this very principle, the amended rule permits the prior identification when the identifying witness testifies at trial and is subject to cross-examination. Based partially on an agency theory, 801(d)(2) has been amended to explicitly state “that a court shall consider the contents of a coconspirator’s statement” in its determination of the existence of any conspiracy and parties’ participation in such. 803(6). In a departure from previous requirements, amended Rule 803(6) permits the foundational requirements for the admissibility of records of regularly conducted activity to be satisfied without having to produce a live foundation witness. As an alternative to the production of a live witness to fulfill the foundational requirements, the amended rule allows a certification which complies with Rule 902(11) or (12) to overcome authentication, best-evidence-rule and hearsay objections to the proffered evidence. The Notes emphasize, however, that other valid objections, such as multiple 32 Birmingham Bar Association


Birmingham Bar Association Bulletin - Summer 2014
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