A Brief History of Alabama Evidence Law and a Few Tips for the Alabama Lawyer
| Publication year | 2021 |
| Pages | 0023 |
By Terrence W. McCarthy and Allison R. Bendall
Introduction
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 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.1 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, 1988.2 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, 1996.3 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.4
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.5 Second, several rules were amended or added with an effective date of October 1, 2013.6 Third, several changes were made to the rules and advisory committee's notes with an effective date of January 30, 2020.7
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.8 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.9 In fact, the rules of evidence themselves tell us this in several places.10...
■ 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.11 The advisory committee's notes to Rule 601 state that this statute was superseded with the passage of Rule 601.12
■ Be Careful Not to
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