Circuit Criminal Trial and Evidence Practice Pointers | Alabama State Bar

[1] Towles v. State, 168 So. 3d 133 (2014).
[2] Goode and Welborn, Courtroom Evidence Handbook, p. 98.
[3] McClendon v. State, 813 So. 2d 936 (Ala. Crim. App. 2001).
[4] Michelson v. United States, 335 U.S. 469, 484 (1948).
[5] Herring v. United States, 555 U.S. 135, 139 (2009) (citing Weeks v. United States, 232 U.S. 383, 398 (1914)).
[6] United States v. Leon, 468 U.S. 897, 909 (1984) (quoting United States v. Janis, 428 U.S. 433, 454 (1976)).
[7] Even seasoned lawyers may lack experience in this area if they have never gotten in the habit of looking for suppression issues.
[8] Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) (defense counsel’s performance was constitutionally deficient where he “failed to file a timely suppression motion, not due to strategic considerations, but because, until the first day of trial, he was unaware of the search and of the State’s intention to introduce” crucial incriminating evidence arguably seized in violation of Fourth Amendment).
[9] 6 Wayne R. LaFave, Search & Seizure § 11.2(b) (5th ed. 2019) (“[M]ost states follow the rule utilized in the federal courts: if the search or seizure was pursuant to a warrant, the defendant has the burden of proof; but if the police acted without a warrant the burden of proof is on the prosecution.”); Ex parte Hergott, 588 So. 2d 911, 914 (Ala. 1991) (“The State has the burden to prove that a warrantless search was reasonable.”).
[10] See F. R. Crim. P. 12(b)(3)(C); Ala. R. Crim. P.3.13; 15.6.
[11] Elkins v. United States, 364 U.S. 206, 217 (1960).
[12] United States v. Taylor, 935 F. 3d 1279, 1289 (11th Cir. 2019).
[13] Id. at 1290 (emphasis omitted) (citing Herring, 555 U.S. at 142).
[14] Herring, 555 U.S. at 144.
[15] See LaFave, supra note 5.
[16] Ala. R. Evid. 803(8)(B) and F.R.E. 803(8)(A)(ii) both provide that police reports are not admissible by the prosecution under the public-records exception to the hearsay rule. The federal exclusion applies to both parties, while the Alabama rule applies only where the report is “offered against the defendant,” Ala. R. Evid. 803(8)(B) (emphasis added).
[17] See F.R.E 612; Ala. R. Evid. 612.
[18] See, e.g., Crusoe v. Davis, 176 So. 3d 1200, 1205 (Ala. 2015) (trial court properly barred officer from testifying about contents of police report where he “admitted he had no independent recollection of the contents”).
[19] See Ala. R. Evid. 803(5); Fed. R. Evid. 803(5).
[20] Id. at 801(d)(1)(A); Fed. R. Evid. 801(d)(1)(A).
[21] See Ala. R. Evid. 801(d)(1)(B); Fed. R. Evid. 801(d)(1)(B).
[22] See Fed. R. Evid. 801(b), (d)(1)(A); Ala. R. Evid. 801(b), (d)(1)(A).
[23] See Ala. R. Evid. 801(a); Fed. R. Evid. 801(a).
[24] Revis v. State, 101 So.3d 247 (Ala. Crim. App. 2011).
[25] Courtaulds Fibers, Inc. v. Long, 779 So.2d 198 (Ala. 2000).
[26] Ex parte Dolvin, 391 So.2d 677 (Ala. 1980).
[27] Simmons v. State, 797 So.2d 1134 (Ala. Crim. App. 1999).
[28] West v. State, 793 So.2d 870 (Ala. Crim. App. 2000).
[29] Stewart v. State, 601 So.2d 491, 499 (Ala. 1993).
[30] Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). See Ex parte Perry, 586 So.2d 242 (Ala. 1991).
[31] See Swantstrom v. Teledyne Cont’l Motors, Inc., 43 So.3d 564, 580 (Ala. 2009).
[32] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469 (1993).
[33] Ala. Code § 36-18-30.
[34] Id. at § 12-21-160 (2012).
[35] Knight v. State, 2018 WL 3805735 (Ala. Crim. App. 2018).
[36] Culp v. State, 178 So.3d 378 (Ala. Crim. App. 2014).
[37] Pettibone v. State, 91 So.3d 94 (Ala. Crim. App. 2011).
[38] Note that these issues were largely addressed in an opinion issued by the court of criminal appeals in January 2020, Watson v. State, --- So. 3d ---, 2020 WL 113366 (Ala. Crim. App. 2020.
[39] The Stored Communications Act, 18 U.S.C. § 2701, et. seq.
[40] Ala. Code §§ 13A-8-115 and 15-5-40.
[41] Carpenter v. United States, 138 S.Ct. 2206, 201 L.Ed. 2d 507 (2018).
[42] See United States v. Carpenter, 926 F. 3d 313 (6th Cir. 2019).
[43] Rule 901(a) of the Alabama Rules of Evidence.
[44] Ala. Code §12-21-43 and Rules 803(6), 902(11), and 1001 of the Alabama Rules of Evidence.
[45] Alabama Rule of Evidence 902(11), (13), and (14).
[46] Woodward v. State, 123 So. 3d 989, 1014-16 (Ala. Crim. App. 2011).
[47] Id.
[48] Recently discussed in United States v. Frazier, 442 F. Supp. 3d 1012 (M.D.Tenn. 2020).
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