Ala. R. Evid. 08

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Rule 801. Definitions (a) Statement.

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A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

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Rule 801. Definitions (b) Declarant.

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A “declarant” is a person who makes a statement.

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Rule 801. Definitions (c) Hearsay.

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“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

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“Prior Statement by Witness” under Rule 801. Definitions (d) Statements That Are Not Hearsay.

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A statement is not hearsay if-- (1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

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“Admission by Party Opponent” under Rule 801. Definitions (d) Statements That Are Not Hearsay.

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A statement is not hearsay if-- (2) Admission by Party Opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

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Rule 802. Hearsay Rule

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Hearsay is not admissible except as provided by these rules, or by other rules adopted by the Supreme Court of Alabama or by statute. 

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(1) Present Sense Impression exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

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(2) Excited Utterance exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

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(3) Then Existing Mental, Emotional, or Physical Condition exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

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(4) Statements for Purposes of Medical Diagnosis or Treatment exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

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(5) Recorded Recollection exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

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(6) Records of Regularly Conducted Activity exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

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(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6) exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

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(8) Public Records and Reports exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, when offered against the defendant in criminal cases, matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the state or governmental authority in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

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(9) Records of Vital Statistics exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Records or data compilations, in any form, of vital statistics such as those relating to births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

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(10) Absence of Public Record or Entry exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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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.

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(11) Records of Religious Organizations exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

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(12) Marriage, Baptismal, and Similar Certificates exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been is- sued at the time of the act or within a reasonable time thereafter.

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(13) Family Records exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

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(14) Records of Documents Affecting an Interest in Property exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

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(15) Statements in Documents Affecting an Interest in Property exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

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(16) Statements in Ancient Documents exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Statements in a document in existence thirty years or more the authenticity of which is established.

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(17) Market Reports, Commercial Publications exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

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(18) Learned Treatises exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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To the extent called to the attention of an expert witness upon crossexamination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

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(19) Reputation Concerning Personal or Family History exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

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(20) Reputation Concerning Boundaries or General History exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.

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(21) Reputation as to Character exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Reputation of a person's character among associates or in the community.

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(22) Judgment of Previous Conviction exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the state or other governmental authority in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

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(23) Judgment as to Personal, Family, or General History, or Boundaries exception under Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial

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Judgments as proof of matters of personal, family, or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

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Exempted declarant exception under Rule 804. Hearsay Exceptions; Declarant Unavailable (a) Grounds of Unavailability.

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“Unavailability as a witness” includes situations in which the declarant-- (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;

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Exception for declarant’s refusal to testify under Rule 804. Hearsay Exceptions; Declarant Unavailable (a) Grounds of Unavailability.

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“Unavailability as a witness” includes situations in which the declarant--  (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;

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Exception for declarant’s lack of memory under Rule 804. Hearsay Exceptions; Declarant Unavailable (a) Grounds of Unavailability.

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“Unavailability as a witness” includes situations in which the declarant--  (3) now possesses a lack of memory of the subject matter of the declarant's statement;

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Exception for dead, mentally ill, or infirm declarants under Rule 804. Hearsay Exceptions; Declarant Unavailable (a) Grounds of Unavailability.

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“Unavailability as a witness” includes situations in which the declarant--  (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity;

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Exception for absent declarants under Rule 804. Hearsay Exceptions; Declarant Unavailable (a) Grounds of Unavailability.

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“Unavailability as a witness” includes situations in which the declarant--  (5) is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subsection (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

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Conditions under which a declarant is not deemed unavailable under Rule 804. Hearsay Exceptions; Declarant Unavailable (a) Grounds of Unavailability.

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A declarant is not unavailable as a witness if exemption, refusal, lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

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(1) Former Testimony under Rule 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay Exceptions.

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The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: Testimony of a witness, in a former trial or action, given (A) under oath, (B) before a tribunal or officer having by law the authority to take testimony and legally requiring an opportunity for cross-examination, (C) under circumstances affording the party against whom the witness was offered an opportunity to test his or her credibility by cross- examination, and (D) in litigation in which the issues and parties were substantially the same as in the present cause.

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(2) Statement Under Belief of Impending Death under Rule 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay Exceptions.

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The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant's impending death and offered in a criminal case.

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(3) Statement Against Interest under Rule 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay Exceptions.

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The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: A statement which was at the time of its making so contrary to the declarant's pecuniary or proprietary interest that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. 

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(4) Statement of Personal or Family History [for self] under Rule 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay Exceptions.

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The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though the declarant had no means of acquiring personal knowledge of the matter stated;

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(4) Statement of Personal or Family History [for relative or intimate associate] under Rule 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay Exceptions.

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The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.

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Rule 805. Hearsay Within Hearsay

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Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

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Rule 806. Attacking and Supporting Credibility of Declarant

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When a hearsay statement, or a statement described in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant must have been confronted with the circumstances of the statement or afforded an opportunity to admit or deny the statement. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.