Textbook Law V. The Law of Practice: Counterfeit Rules of Evidence, 0917 ALBJ, 78 The Alabama Lawyer 340 (2017)

Author:Dean Charles W. Gamble.
Position:Vol. 78 5 Pg. 340

Textbook Law V. the Law of Practice: Counterfeit Rules of Evidence

Vol. 78 No. 5 Pg. 340

Alabama Bar Lawyer

September, 2017

Dean Charles W. Gamble.


The primary responsibility of evidence professors is to teach the law as it appears under rules of court, case law, statutory law and constitutional provisions. Often, however, the teacher is confronted by students, usually those returning from their first clerkship experience, who manifest surprise at the inconsistency between the evidence law in the books and the law as sometimes applied in the trial courts. Indeed, because of such inconsistencies, these same students begin to question whether the law professor correctly understands the evidence law. Over time, the professor feels compelled, largely as a means of self-defense, to teach these points of inconsistency between the law of the textbook and the law of practice.

These erroneous variants upon traditional principles of evidence are termed, for purposes of this paper, "counterfeit rules of evidence." The adjective "counterfeit" seems particularly appropriate since each of these rules manifests some characteristics that closely resemble, except for corruption, the corresponding correct rule. Stated differently, these counterfeit doctrines frequently contain, intermingled with error, a grain of truth. It is this latter characteristic that renders them all the more solidly entrenched, almost immune to correction and widely recognized by lawyers and judges as correct law.

The immediate purpose of this article is to set forth illustrative examples of these counterfeit rules, to explain their application and to identify their basis in error. The ultimate goal, however, is to convince the bench and bar that these corruptions should forthwith be eradicated despite their strength and breadth of application in trial practice.

Counterfeit #1: An Out-of-Court Statement Is Non-Hearsay if the Declarant Takes the Witness Stand and Is Subject to Cross-Examination and Confrontation

The first and perhaps most pervasive counterfeit rule of evidence applied as part of trial court custom is that an out-of-court statement is not hearsay if the declarant is on the witness stand and subject to cross-examination and confrontation. Often, the party arguing non-hearsay under this counterfeit will do so by responding to a hearsay objection in the shorthand: "This, your honor, is not hearsay because it is the witness's own statement." On other occasions, the response will be: "This is not objectionable as hearsay because the evil aimed at by the hearsay rule is the absence of cross-examination while, in this case, the declarant is on the stand and may be crossed and confronted by the objecting party regarding the prior statement."

This argument sounds beautifully logical, but it is fatally flawed. Both of these responses constitute counterfeit principles and generally should not be deemed a correct response to a hearsay objection. Innumerable instances arise where it is hearsay to place a witness on the stand and to ask that witness regarding his or her own out-of-court statement. The reason this remains hearsay, despite a present right to cross-examine and observe the witness's demeanor, is that the original evil giving rise to the hearsay objection was the absence of the right to cross, confront or see the demeanor of the declarant at the time the statement was made. No amount of cross or confrontation at trial will abate this evil sufficiently to satisfy the historic definition of hearsay.1

Counterfeit #2: That Failure to Satisfy a Particular Restrictive Requirement Contained In One Alabama Rule Of Evidence Precludes The Offering Party from Securing the Admission Of the Same Evidence Under another Alabama Rule of Evidence

Which Does Not Contain this Restrictive Requirement

Another counterfeit principle arises from the argument that proof which violates one rule of evidence, because it cannot satisfy a specific requirement of that particular rule, cannot then be offered successfully under another rule of evidence which does not contain this requirement. Assume, for example, that a witness is called to testify for labor in a dispute with management. Management asks the witness on cross: "Isn't it true that you were fired by management for embezzlement?" The witness answers in the negative and the management offers a second witness who saw the embezzlement by the first witness. Labor argues that extrinsic evidence in the form of the second witness's testimony is inadmissible because Ala. R. Evid. 608(b) provides that a witness may not be asked for impeachment about prior acts of misconduct relevant to...

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