This is the first post in a two-part series on practical rules of evidence by Christian & Small Associate W. Steven Nichols. Part II will be published on Friday, Dec. 4.
“When I was young I could remember everything, whether it happened or not.
Now that I am old I find that I can only remember those things which never happened.”
– Mark Twain
Several (read: many, many, many) years ago, one of the finest trial lawyers Alabama has ever known prepared a handout for a talk at the Alabama Defense Lawyers Fall meeting in Birmingham. The lawyer was Bobby Black. The title was “Practical Rules of Evidence that You Know But Don’t have a Citation For.” That tract has attended every trial we have had from that day to this.
As a tribute to Bobby and as a commemoration of his years of service to the Bar, this is an update to his earlier work. The hope is that you will find it useful as a quick reference guide during your trials.
Updates on Black’s Original Categories of Evidence:
Prior Traffic Tickets
“[E]vidence of a driver’s prior convictions of traffic violations is inadmissible in a suit for damages growing out of an automobile collision where such prior convictions have no connection with the collision in question.” Dean v. Johnston, 206 So. 2d 610, 613-614 (Ala. 1968).
A witness’s prior conviction for a crime involving moral turpitude may be shown as going to his credibility, however, “a conviction for speeding would not involve moral turpitude.” Id.
Telephone Conversations with Alleged Agent
Where the witness has called the telephone number of a specific business concern as listed in the telephone directory, and the conversation relates to business reasonably transacted on the telephone, the identity of the person answering and also that person’s authority to represent the business concern is sufficiently authenticated. See 2 Charles W. Gamble & Robert J. Goodwin, McElroy’s Alabama Evidence § 329.01(4) (6th ed. 2009) (citing Ala. R. Evid. 901(b)(6)(B)).
But see Yancy v. Ruffin, 206 So. 2d 878 (Ala. 1968) (holding that testimony of a telephone conversation between the witness and a purported agent of the corporate defendant was inadmissible hearsay because there was no evidence to establish the identity of the person with whom the witness spoke); Avon-Avalon, Inc. v. Collins, 643 So. 2d 570 (Ala. 1994) (holding that testimony of telephone conversation between the deceased and defendant’s agent was inadmissible where the witness never heard the voice of the individual the deceased spoke with over the telephone and did not even see the number the deceased dialed).
Driver’s License
In a negligence action, the admission into evidence of the failure of the defendant to possess a driver’s license is prejudicial and requires reversal. Before such evidence is admissible there must be established a causal connection between the failure to have a license and the injuries received in the accident. No such showing was made in this case. Giles v. Gardner, 249 So. 2d 824, 827 (Ala. 1971).
Evidence of a driver’s lack of a driver’s license should have been admitted in a negligent entrustment action, because such action requires proof of a driver’s “incompetence,” and evidence of a driver’s lack of driver’s license is probative (although not conclusive) with respect to the driver’s possible inexperience and lack of skill. Mason v. New, 475 So. 2d 854 (Ala. 1985).
Accident Reports
“It has been the settled rule in our jurisdiction that the reports of investigating officers are not admissible in evidence, as being hearsay.” Vest v. Gray, 154 So. 2d 297 (Ala. 1963).
“The automobile accident report of an investigating officer is not admissible into evidence because it does not come under the business records exception to the hearsay rule.” Plenkers v. Chappelle, 420 So. 2d 41 (Ala. 1982).
A police officer is not allowed to read from the accident report at trial because the information therein is hearsay. See Crusoe v. Davis, 2015 Ala. LEXIS 23 (Ala. Feb. 20, 2015).
Pleadings in Another Case
A party’s pleadings in a prior case are admissible against that party in a subsequent action as an admission against interest. The prior pleadings, however, must be indeed inconsistent with the party’s present position and must be “drawn under the party’s direction or with his consent.” Gulf Shores v. Harbert Int’l, 608 So. 2d 348, 354 (Ala. 1992).
See also Redwing Carriers, Inc. v. Stone, 310 So. 2d 206 (Ala. 1975) (“Generally, pleadings are admissible against a party as admissions whether the pleadings were filed in behalf of the party in another action, or upon proof that the pleadings were drawn under the party’s direction or with his consent.”).
Mortality Tables
Admissible where there is evidence that the plaintiff has suffered permanent personal injuries or the question of a person’s life expectancy is a material question to be decided. Drummond Co. v. Self, 622 So. 2d 336 (Ala. 1993).
But inadmissible where the injury complained of is purely subjective and there is no expert medical testimony tending to show the permanency of the alleged injury. Collins v. Windham, 167 So. 2d 690 (Ala. 1964).
Inadmissible in a wrongful death action, in which only punitive damages are recoverable. 2 Charles W. Gamble & Robert J. Goodwin, McElroy’s Alabama Evidence § 259.01(1)(c) (6th ed. 2009). See also Kurn v. Counts, 22 So. 2d 725 (Ala. 1945) (holding that evidence of decedent’s age, health, and absence of any physical defects is not admissible in a wrongful death case when cause of the decedent’s death is not at an issue). But see Bessemer v. Clowdus, 74 So. 2d 259 (Ala. 1954) (recognizing that such evidence is admissible on a claim of contributory negligence, i.e., when the cause of decedent’s death is an issue).
Payment by Joint Tortfeasor
Admissible in mitigation of damages. Louisville & N. R. Co. v. Burke, 66 So. 885 (Ala. Civ. App. 1914).
Defendant asserting a set-off defense arising from a pro tanto settlement must interpose this defense with specificity at the first opportunity because it is an affirmative defense. Morris v. Laster, 821 So. 2d 923 (Ala. 2001).
Repairs or Changes Made After Accident
Not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. See Ala. R. Evid. 407. See also Phar-Mor, Inc. v. Goff, 594 So. 2d 1213 (Ala. 1992) (Observing that “subsequent remedial measures have been excluded on two grounds: (1) that evidence of a subsequent repair or change was irrelevant to show antecedent negligence; and (2) that public policy favored promoting safety by removing the disincentive to repair.”).
May be admissible when offered for another purpose (other than proving antecedent negligence or culpable conduct), such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. See Ala. R. Evid. 407. See also Banner Welders v. Knighton, 425 So. 2d 441 (Ala. 1982) (“[E]vidence of subsequent repairs … may be admissible to show identity of ownership, to show control of the locus, to contradict or impeach a witness, or to lessen the weight of an expert opinion. Another permissible use may occur where such evidence is offered to establish a condition existing at the time of the accident.”).
The party seeking to admit evidence of subsequent remedial measures offered for these “other purposes” has the burden of establishing that: (1) the “other purposes” are material, that is, at issue in the case; (2) the “other purposes” are relevant; and (3) the prejudicial effect of the evidence is substantially outweighed by its probative value. Holland v. First Nat’l Bank, 519 So. 2d 460 (Ala. 1987).
Speed
Expert who did not observe a collision may express an opinion as to the speed of a vehicle based on skid marks made before impact. However, testimony based on evidence of skid marks made after impact is inadmissible. Also, an expert opinion as to speed may not be given when based solely on the physical condition of the vehicles after an accident. See Giles v. Gardner, 249 So. 2d 824, 827-828 (Ala. 1971). But see Maslankowski v. Beam, 259 So. 2d 804 (Ala. 1972) (holding that trial court did not abuse its discretion in allowing expert, who was not an eyewitness to the collision, to testify as to the estimated speed at impact predicated on the distances and directions traveled after impact, the damages sustained by the automobiles, the point of impact, the angle of impact and numerous other combining physical facts).
Trial court did not abuse its discretion in admitting evidence of defendant’s speed one mile before the accident. See Swindall v. Speigner, 214 So. 2d 436 (Ala. 1968).
Evidence of speed two miles before accident was held inadmissible because it was too remote in time, distance and place. Deese v. White, 313 So. 2d 166 (Ala. 1975).
A car travels 1.46 feet per second times miles per hour traveling. See Wayland Distributing Co. v. Gay, 252 So. 2d 414 (Ala. 1971).
Opinion Evidence
The traditional rule is that an expert’s opinion cannot be based on opinion of others. See Salotti v. Seaboard C. L. R. Co., 299 So. 2d 695 (Ala. 1974). The traditional rule has been modified, however, to allow a medical expert to give opinion testimony based in part on the opinions of others when those other opinions are found in medical records that have been admitted into evidence. See Nash v. Cosby, 574 So. 2d 700 (Ala. 1990); Ex parte Wesley, 575 So. 2d 127 (Ala. 1990).
The information upon which an expert relies must be in evidence. Ex parte Wesley, 575 So. 2d 127 (Ala. 1990). See also Cavalier Ins. Corp. v. Gann, 329 So. 2d 573 (Ala. Civ. App. 1976) (witness not allowed to read from value book that was not admitted into evidence and give an opinion based on the value stated in the book).
Accordingly, although an expert is permitted to give opinion testimony based on facts which are assumed in a hypothetical question, the hypothesized facts must be facts that have been admitted into evidence. See Welch v. Houston County Hospital Bd., 502 So. 2d 340 (Ala. 1987).
A police officer who did not witness an accident cannot give a causation opinion unless he is first qualified as an expert. See Worsham v. Fletcher, 454 So. 2d 946 (Ala. 1984).
X-Rays
Must produce X-rays; cannot testify as to what X-rays show without X-rays being produced. See Mobile City Lines, Inc. v. Proctor, 130 So. 2d 388 (Ala. 1961).
The posts in this series were excerpted from Nichols’ “Practical Evidence Rules That You Know But May Not Have A Citation For” article in the fall issue of the Alabama Defense Lawyers Association Journal magazine. Click here for the full article.