News Post

Getting your Trinity Audio player ready...

By Terrence W. McCarthy and Tyler E. Yarbrough

Introduction

On March 3, 2023, the Alabama Supreme Court approved two amendments to the Alabama Rules of Evidence that became effective May 1, 2023.[1]

First, an amendment to Rule 404(b) significantly changed (and increased) the prosecution’s burden to provide notice of “other acts” evidence offered against the criminally accused.

Second, an amendment to Rule 803(10), the hearsay exception for the absence of public records, provides a “notice-and-demand” procedure in criminal cases when the prosecution offers a Rule 803(10) certification against a criminal defendant.

Both amendments – which apply only to criminal cases and do not impact civil cases – are consistent with amendments to the corresponding federal rules. The purpose of this article is to give the Alabama practitioner an overview of these two amendments.

Amendment to Rule 404(b)

Background

Most Alabama lawyers are familiar with Rule 404(b) of the Alabama Rules of Evidence, which allows a party to introduce evidence of other crimes, wrongs or acts for purposes other than to show the person acted in conformity with their character on the occasion in question.[2] Permissible purposes for the evidence include, but are not limited to, proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.[3]

For example, suppose a criminal defendant is on trial for stealing a woman’s car, and the prosecution wants to introduce evidence that he stole the woman’s purse (which contained her car keys) two days before stealing the car. This prior act is not being offered to show the defendant is of bad character and therefore must have stolen the car, but to show he had the opportunity to steal the car by obtaining the keys. This is permissible Rule 404(b) evidence.

Although Rule 404(b) evidence can be offered in both civil and criminal cases, “it obtains special importance in criminal cases, where it is typically used by prosecutors seeking to rely on a criminal defendant’s prior bad act as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake in the crime charged.”[4]

When Federal Rule 404(b) was originally enacted in 1974, it had no notice requirement at all. Thus, prosecutors could spring Rule 404(b) evidence against criminal defendants without warning, resulting to some extent in trial by ambush. This chaotic approach changed in 1991, when the rule was amended to add “a pretrial notice requirement in criminal cases and [was] intended to reduce surprise and promote early resolution on the issue of admissibility.”[5]

The notice provision added with the 1991 amendment to Federal Rule 404(b) could essentially be broken down into the following three requirements:

(1) the accused had the affirmative obligation to request notice of Rule 404(b) evidence; without such a request, the prosecution had no obligation to provide notice;

(2) assuming a request was made, the prosecution was required to provide “reasonable notice” in advance of trial, or provide notice during trial if pretrial notice was excused for “good cause;” and

(3) the prosecution was obligated only to provide notice of the “general nature” of the Rule 404(b) evidence.

When the Alabama Rules of Evidence became effective in 1996, the notice requirement for Rule 404(b) mirrored that of the corresponding federal rule.[6]

For years, many criminal defense lawyers believed the original Rule 404(b) notice requirements to be inadequate. For example, because the rule only obligated prosecutors to provide notice of the “general nature” of any Rule 404(b) evidence, the notice often did not come with the specificity defense lawyers desired. In fact, the rule “was understood by some courts to permit the government to satisfy the notice obligation without describing the specific act that the evidence would tend to prove, and without explaining the relevance of the evidence for a non-propensity purpose.”[7] In short, the Rule 404(b) notice provision “proved something of a disappointment for the defense.”[8]

Over the years, several federal circuit courts suggested that Rule 404(b) needed to be more carefully applied. Over the course of several meetings, the advisory committee to the Federal Rules of Evidence monitored these cases and considered many changes to the rule.[9] Ultimately, the federal advisory committee recommended several changes to the Rule 404(b) notice provisions that became effective December 1, 2020, and these changes were based at least in part on the recognition “that some protection for defendants in criminal cases could be promoted by expanding the prosecutor’s notice obligations under Rule 404(b).”[10]

Alabama Follows the Lead of the Federal Courts

The advisory committee to the Alabama Rules of Evidence recommended to the Alabama Supreme Court that Rule 404(b) be amended to mirror the 2020 amendment to the corresponding federal rule. The majority of the Alabama Supreme Court agreed, and Rule 404(b) was amended to read as follows effective May 1, 2023 (the entire rule is quoted to provide context):

Rule 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes, Wrongs, or Acts

(a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. In a criminal case, evidence of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2)(A)(i), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of victim.

(A) In criminal cases. (i) Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or (ii) evi­dence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

(B) In civil cases. Evidence of character for violence of the victim of assaultive conduct offered on the issue of self-defense by a party accused of assaultive conduct, or evidence of the victim’s character for peacefulness to rebut the same. Whenever evidence of character for violence of the victim of assaultive conduct, offered by a party accused of such assaultive conduct, is admitted on the issue of self-defense, evidence of character for violence of the party accused may be offered on the issue of self- defense by the victim and evidence of the accused party’s character for peacefulness may be offered to rebut the same.

(3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, 609, and 616.

(b) Other crimes, wrongs, or acts.

(1) Prohibited Uses. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.

(2) Permitted Uses. This evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(3) Notice in a Criminal Case. In a criminal case, the prosecutor must:

(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;

(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and

(C) do so in writing before trial – or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

The new Rule 404(b) is a significant change to pre-existing Alabama law in several respects:

First, the prosecution must provide reasonable notice of its Rule 404(b) evidence, so the defendant has a fair opportunity to meet it. “Under the amended rule, prosecutors should describe the specific Rule 404(b) evidence intended to be offered with sufficient detail so the defendant can adequately prepare to respond to such evidence.”[11] Prior to this amendment, prosecutors were required only to disclose the “general nature” of the Rule 404(b) evidence, which was a fairly low bar.[12]

Second, the prosecution must identify the specific “nonconformity” purpose for which the Rule 404(b) evidence is being offered (i.e., motive, intent, identity).[13] Notice that merely provides a “laundry list” of the various Rule 404(b) purposes is not sufficient.[14]

Third, the prosecution’s pretrial notice of intent to use Rule 404(b) evidence must be in writing.[15]

Fourth, the notice must be provided before trial “in sufficient time to allow the defendant a fair opportunity to meet the evidence,” unless the pre-trial notice requirement is excused by the court for good cause.[16] “When notice is provided during trial after a finding of good cause, the court may need to consider protective measures to ensure the defendant is not prejudiced.”[17] Examples of protective measures could be making the Rule 404(b) witness available to the defendant before the “other acts” evidence is introduced or giving the defendant sufficient time to prepare.[18] When notice is provided during trial, it can be in any form.”[19]

Fifth, in another significant change, the prosecution now has an affirmative obligation to disclose Rule 404(b) evidence to the defendant. Prior to the amendment, the burden was on the defendant to request Rule 404(b) evidence.[20] Otherwise, the prosecution had no obligation to disclose it.

Finally, the amendment is not intended to change what has long been the law in Alabama that the pretrial notice requirement is “’obligatory upon the prosecution even when it intends to offer the collateral crimes, wrongs, or acts under theories other than Rule 404(b), such as rebuttal or impeachment.’”[21]

Amendment to Rule 803(10)

Rule 803(10), which provides a hearsay exception for the absence of a public record or entry, is a rule that is infrequently cited. While Rule 803(8) is the frequently relied upon public records exception to the hearsay rule, Rule 803(10) “is a companion concept that authorizes the admission of a certificate or testimony that a diligent search has been conducted and that no public record of a particular tenor has been found.”[22] To illustrate, suppose a party in a lawsuit claims that it filed the necessary paperwork to incorporate Acme, Inc. in the state of Alabama. If the opposing party offers testimony or a certificate from the Secretary of State that no record of Acme, Inc. was found after a diligent search, this could be offered as evidence that Acme, Inc. was never incorporated in Alabama.

The fact that Rule 803(10) provides the option of introducing a Rule 803(10) certificate in lieu of live testimony raises potential Confrontation Clause issues when the certificate is offered against a criminal defendant. In Melendez-Diaz v. Massachusetts,[23] the majority opinion “‘suggested in dicta … that the introduction of such a certificate would violate the Confrontation Clause.’”[24]

Rule 803(10) of the Federal Rules of Evidence was amended effective December 1, 2013, in response to the Melendez-Diaz case.[25] Alabama followed suit effective May 1, 2023, by adding the second sentence to Rule 803(10), which now reads as follows in its entirety:

Rule 803(10). Absence of Public Record or Entry

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. Provided, however, that this exception to the hearsay rule shall apply in a criminal case only if a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice – unless the court sets a different time for the notice or the objection.

The May 1, 2023 amendment added what is referred to as a “notice-and-demand” procedure when the prosecution offers a Rule 803(10) certification against a criminal defendant.[26] Unless the court sets a different time, a prosecutor who intends to offer a Rule 803(10) certification must provide the accused with written notice of such intent at least 14 days before trial.[27] The accused has 7 days from receipt of that notice to object and demand the presence of the official who prepared the certificate.[28] In other words, this procedure gives the criminal defendant “veto power” over a prosecutor’s Rule 803(10) certificate and allows the defendant to demand the presence of the declarant at trial.[29]

Conclusion

Since the Alabama Rules of Evidence became effective on January 1, 1996, the Alabama Supreme Court has adopted amendments and/or new rules on four occasions. The first change became effective January 1, 2012, when the so-called Daubert amendment changed the analysis for the admissibility of scientific expert testimony.[30] The second change became effective October 1, 2013, when Rules 804(b)(5), 902(11), and 902(12) were added and the following rules were amended: 404(a), 405(a), 407, 408, 412, 510, 608(b), 703, 801(d), 803(6), 804(b)(2), and 1103.[31] Effective January 30, 2020, Rules 902(13) and 902(14) were added, Rule 803(16) was amended, and the advisory committee’s notes to Rules 503A(d)(3), 803(7), and 803(8) were amended.[32] The 2023 amendments represent the fourth change.

Needless to say, the rules of evidence are important, as are the four sets of amendments. For Alabama lawyers who still rely on the original rules of evidence book, it may be time to get a new one!

Endnotes

[1] See https://judicial.alabama.gov/docs/rules/OrderonRule404(b)Ala.R.Evid%20.pdf. (establishing amendment to Ala. R. Evid. 404(b); https://judicial.alabama.gov/docs/rules/OrderonRule803(10)Ala.R.Evid.pdf. (establishing amendment to Ala. R. Evid. 803(10).

[2] Ala. R. Evid. 404(a).

[3] Ala. R. Evid. 404(b)(2).

[4] United States v. Ballou, 59 F. Supp. 3d 1038, 1050 (D.N.M. 2014) (internal citations and quotations omitted).

[5] Fed. R. Evid. 404(b) advisory committee’s note to 1991 amendments.

[6] Ala. R. Evid. 404(b) advisory committee’s note.

[7] Fed. R. Evid. 404(b) advisory committee’s note to 2020 amendments.

[8] Kenneth W. Graham, Jr., 22B Fed. Practice & Procedure § 5257 (2d ed. 2020).

[9] See May 14, 2018, Report of the Advisory Committee on Evidence Rules (revised July 16, 2018).

[10] Id.

[11] Ala. R. Evid. 404(b) advisory committee’s note to amendment (effective May 1, 2023).

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Ala. R. Evid. 404(b) advisory committee’s note to amendment (effective May 1, 2023); Ala. R. Evid. 404(b)(3)(C).

[17] Ala. R. Evid. 404(b) advisory committee’s note to amendment (effective May 1, 2023).

[18] Ala. R. Evid. 404(b) advisory committee’s note to amendment (effective May 1, 2023). (citing United States v. Lopez-Gutierrez, 83 F. 3d 1235, 1241 (10^th Cir. 1996) & United States v. Perez Tosta, 36 F. 3d 1552, 1562 (11^th Cir. 1994)).

[19] Ala. R. Evid. 404(b)(3)(C).

[20] Ala. R. Evid. 404(b) advisory committee’s note to amendment (effective May 1, 2023).

[21] Ala. R. Evid. 404(b) advisory committee’s note to amendment (effective May 1, 2023). (quoting C. Gamble, et al., McElroy’s Alabama Evidence, at § 69.02(9) (7^th ed. 2020)).

[22] Charles W. Gamble, Terrence W. McCarthy, & Robert J. Goodwin, Gamble’s Alabama Rules of Evidence, § 803(10) (3d ed. 2013).

[23] Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321 (2009).

[24] C. Gamble, et al., McElroy’s Alabama Evidence, at § 269.03(1) (7^th ed. 2020). (quoting Jeffrey Belin, 30B Federal Practice & Procedure, Evidence § 6903 (2017 ed.)).

[25] Fed. R. Evid. 803(10) advisory committee’s note to amendment (effective Dec. 1, 2013).

[26] Ala. R. Evid. 803(10) advisory committee’s note to amendment (effective May 1, 2023).

[27] Ala. R. Evid. 803(10).

[28] Ala. R. Evid. 803(10).

[29] Jeffrey Bellin, 30B Federal Practice & Procedure, § 6904 (2023 ed.).

[30] To learn about the Daubert amendment, see Robert J. Goodwin, An Overview of Alabama’s New Daubert-Based Admissibility Standard, 73 Ala. Law. 196 (2012); Terrence W. McCarthy & Brooke G. Malcom, Alabama’s Daubert Amendment: An Overview of the Current State of the Law and Resources for the Practitioner, 79 Ala. Law. 254 (2018).

[31] These rule changes are all discussed in the Seventh Edition of McElroy’s Alabama Evidence and the Third Edition of Gamble’s Alabama Rules of Evidence.

[32] To learn about the 2020 amendments, see Charles W. Gamble, Robert J. Goodwin, & Terrence W. McCarthy, An Overview of the 2020 Amendments to the Alabama Rules of Evidence, 81 Ala. Law. 350 (2020).