EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, January 1, 2012

High Tension: Supreme Court Of Alabama Finds No Tension Between Hearsay Rule & Hearsay Statute

Like its federal counterpartAlabama Rule of Evidence 801(d)(1)(A) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...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....

Meanwhile, Alabama Code § 15-25-31 provides that

An out-of-court statement made by a child under 12 years of age at the time of the proceeding concerning an act that is a material element of any crime involving child physical offense, sexual offense, and exploitation, as defined in Section 15-25-39, which statement is not otherwise admissible in evidence, is admissible in evidence in criminal proceedings, if the requirements of Section 15-25-32 are met.

So, let's say that an alleged child victim of a sex crime makes a statement that does not qualify for admission under Rule 801(d)(1)(A) but does qualify for admission under § 15-25-31. Should the court admit it. According to the recent opinion of the Supreme Court of Alabama in M.L.H. v. State, 2011 WL 6004617 (Ala. 2011), the answer is "yes."

In M.L.H.

M.L.H. was charged with first-degree sodomy...and first-degree sexual abuse...M.L.H. applied for and was granted youthful-offender status. At the bench trial, L.H., the child victim, testified. The State also presented testimony from L.H.'s mother; Dr. Allison Cunningham, a pediatrician who had examined L.H.; Sharon Whitfield, a forensic interviewer who had interviewed L.H.; Dr. Michael Taylor, another pediatrician who had examined L.H.; and Terry Osberry, a licensed professional counselor who had interviewed L.H. Each of those witnesses testified regarding prior out-of-court statements that L.H. had made to him or her that were inconsistent with L.H.'s trial testimony concerning how much M.L.H. had touched him.

L.H.'s prior inconsistent statements did not qualify for admission under Alabama Rule of Evidence 801(d)(1)(A) because they were not "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition....: Nonetheless, the trial court deemed them admissible under Alabama Code § 15-25-31.

After he was convicted, M.L.H. appealed, claiming that the trial court erred in finding that § 15-25-31 could "override" Rule 801(d)(1)(A). The Court of Criminal Appeals of Alabama agreed, concluding that there is an "inherent tension" between  § 15-25-31 and Rule 801(d)(1)(A) and "that Rule 801(d)(1)(A), and not § 15-25-31, governs the admissibility of a child witness's prior inconsistent out-of-court statements." 

In response to the State's subsequent appeal, the Supreme Court of Alabama agreed with the trial court, correctly citing to Alabama Rule of Evidence 802, which provides that

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

In other words, statutes such as § 15-25-31 supplement the Alabama Rules of Evidence and can make evidence admissible that is otherwise inadmissible under the Rules. Thus, the court found no "inherent tension" between  § 15-25-31 and Rule 801(d)(1)(A) and concluded that the trial court properly admitted L.H.'s prior inconsistent statements under § 15-25-31.



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