Burns Garner Law Firm

Burns Garner Law Firm General practice law firm in Gadsden, Alabama focusing on helping our clients with issues such as me We are Gadsden lawyers.

Each of the lawyers in our law firm was born and raised in the Gadsden, Alabama area. Our primary focus is the litigation of cases involving serious personal injury and death caused by car wrecks, transfer truck wrecks, train crossing collisions, medical malpractice, job injuries, construction site injuries, product defects, and other dangerous conditions or actions. We are proud to be Alabama per

sonal injury lawyers because that role allows us to represent people who oftentimes are left with catastrophic injuries or loss of a family member with no other legal remedy for the wrong which caused the injury or death except taking the case before a civil court. We have represented people in Gadsden, Etowah County and surrounding Alabama counties since 1958. Our law firm is located in Gadsden, Alabama, conveniently on the same block as the Etowah County Courthouse and Judicial Building. Due to the smaller population size of our location, we continue to maintain a general practice, including social security, disability, family law, probate and criminal cases.

03/25/2024

Alabama Rules of Evidence, Rule 201. Judicial Notice of Adjudicative Facts. . .
(a) . . ..
(b) . . ..
(c) When Discretionary. A court may take judicial notice whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

Stewart’s comment: The court can take judicial notice of a fact whenever it pleases but the judge is required to do so if a party requests the judge to do so and supplies the judge with the necessary information.

03/20/2024

Alabama Rules of Evidence, Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Stewart’s comment: Sometimes a fact is so generally known and accepted as a fact that a party is not required to present evidence to prove it but can ask the judge to acknowledge it as a fact. Examples are countless and include: There are 5,280 feet in a mile (or any other mathematical conversion), tide schedules, rainfall times and amounts, sunrise and sunset times, 12 months in a year, 26 letters in the alphabet, 66 books in the Bible, and sometimes assertions like use of dynamite as an explosive is intrinsically dangerous. Oftentimes, the acknowledgment of facts can be based on trusted statistics or data compilations like those in a census maintained by the government or an almanac.

02/28/2024

Alabama Rules of Evidence, Rule 105. Limited Admissibility
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Stewart’s Comment: When this occurs in a jury trial, the judge must instruct the jury regarding the purpose for which the jury can use the evidence and that the jury is prohibited from using the evidence for other purposes. For example, the defendant claims it did not have authority or control over an allegedly dangerous condition in a parking lot. The plaintiff offered evidence that the defendant made repairs to the condition after the plaintiff was injured by the condition. A rule of evidence called “subsequent remedial measures” (Rule 407) generally prevents a plaintiff from proving that the defendant repaired the condition after an accident involving the condition to prove the defendant’s negligence. The judge should nevertheless allow the plaintiff to prove the repairs were made after the accident by the defendant to counter the defendant’s claim that it did not have control of the condition. Once the judge allows the evidence to be admitted, the defendant can request and the judge should grant a limiting instruction to the jury such as: . . . Judge to jury: You shall only use the evidence of the subsequent remedial measure by the defendant to determine whether the defendant had control of the condition but you shall not use such evidence for any other purpose (or to prove that the defendant was negligent). Due to human nature, the effect of such a charge to the jury may be dubious. Some lawyers would argue that requesting and receiving a limiting instruction places more focus on the evidence and thus may be counterproductive.

02/13/2024

Rule 104 - Preliminary questions
(e) Weight and Credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

Stewart’s Comments: In a jury case, the jury, and not the judge, determines the weight and credibility of the admitted evidence. In other words, the jury is not required to believe the admitted evidence and it should only accept evidence that it finds worthy of belief. For that reason, though the judge may allow certain evidence based on preliminary questions determined by the judge, either party is still permitted to introduce evidence relevant to the weight and credibility of the admitted evidence and may argue to the jury that the admitted evidence is not credible.

02/06/2024

Rule 104 - Preliminary questions
(d) Testimony by Accused. The accused does not, by testifying at a preliminary hearing on the admissibility of a confession, become subject to cross-examination as to other issues in the case.
Stewart’s Comments: The State of Alabama plans to offer a confession of the accused in a criminal case. This rule allows the accused defendant to testify outside the presence of the jury concerning the alleged confession and the circumstances surrounding the confession without having to be subjected to cross examination by the State of Alabama regarding other issues in the case. In other words, the accused can testify about the confession outside the hearing of the jury without forfeiting his 5th Amendment right against self-incrimination involving the actual crime and other related matters.

02/05/2024

Rule 104 - Preliminary questions
(c) Hearing or presence of jury. In criminal cases, hearings on the admissibility of confessions or evidence alleged to have been obtained unlawfully shall be conducted out of the hearing and presence of the jury. Hearings on other preliminary matters shall be conducted out of the hearing and presence of the jury when the interests of justice require.
Stewart’s Comments: This rule prevents the jury from hearing evidence of the criminal defendant’s confession and the circumstances surrounding the confession only for the court to then rule that the confession is inadmissible. It is impossible to “unring” the bell. Once the jury hears the confession, it is difficult, if not impossible, to then not allow the confession in evidence and at the same time prevent the jury from considering the confession in its decision. For that reason, the hearing regarding the admissibility of confessions is held outside the presence of the jury so that the jury never knows that it occurred.

02/01/2024

Rule 104 - Preliminary questions
(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition or may admit that evidence subject to the introduction of evidence sufficient to support such a finding.

Stewart’s Comments: Sometimes, evidence may only be relevant if another fact exists. In such a situation, the judge may allow the evidence conditioned on presentation of evidence of the other “conditional” fact. Example: Joe sent an email to Sally stating in the email that the supermarket floor was slippery. That evidence was being offered as evidence that Sally had notice that the supermarket floor was slippery before she fell on the floor. In order to admit the email into evidence to prove Sally had notice that the supermarket floor was slippery, there must also be evidence that Sally received and read the email before she fell on the floor.

01/31/2024

Rule 104 - Preliminary questions
(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

Stewart’s Comments:
(a) Whether evidence is admissible may depend on “preliminary questions” or facts. If so, the judge makes the determination of those preliminary questions or facts and in making such a determination, the judge may consider inadmissible evidence to decide whether the evidence sought to be admitted is legally admissible. For example, the judge may have to determine whether the witness has firsthand knowledge of what he is testifying about or is the testimony merely attempting restate what someone else observed (i.e., hearsay). The judge may also be required to determine whether a privilege (like attorney-client privilege or counselor-patient privilege) applies based on the circumstances surrounding the communication.

01/25/2024

(d) The lawyer’s failure to object will not prevent the court from granting a remedy to a criminal defendant if substantial rights of the criminal defendant have been affected and it is a case in which the death penalty has been imposed.

01/25/2024

Alabama Rules of Evidence
Article I. General Provisions
Rule 103.
Rulings on evidence.
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) OBJECTION. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) OFFER OF PROOF. In case the ruling is one excluding evidence, the substance of the
evidence was made known to the court by offer or was apparent from the context within
which questions were asked.
(b) Record of offer and ruling. The court may add any other or further statement which
shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights in a case in which the death penalty has been imposed, even if they were not brought to the attention of the court.

Stewart’s Comment:
(a) A bad ruling on evidence by the judge will not be considered “error” unless it substantially affects a party’s rights.
(a)(1) The lawyer must also object to the admission of evidence at the right time and usually must tell the judge why from a legal basis the evidence should not be allowed.
(a)(2) If the judge does not allow certain evidence, the offering party must make known to the court (but not the jury) the substance of the evidence which the judge is not allowing into evidence by context of the question asked or by offering proof of the evidence.
(b) The judge can comment on his understanding of the evidence being offered and a justification for his ruling.
(c) To the extent possible, the judge and parties are to keep the jury from knowing what evidence is being offered by a party but not allowed into evidence by the judge.

01/22/2024

Alabama Rules of Evidence
Article I. General Provisions
Rule 102.
Purpose and construction.
These rules shall be construed to secure fairness in administration, elimination of
unjustifiable expense and delay, and promotion of growth and development of the law of
evidence to the end that the truth may be ascertained and proceedings justly determined.

Stewart’s comment: The laws of evidence are designed to help courts to conduct trials efficiently yet fairly; to find the truth and achieve a just and fair result. Therefore, some relevant evidence may not be allowed because it may take too much time, the evidence is only modestly helpful in achieving a fair and just outcome and/or the evidence is merely cumulative (more of the same). Also, when fashioning rules to determine admissibility of evidence at trial, the goal is to ensure that there is some basis for relying on the evidence admitted for consideration during the trial.

01/16/2024

I plan to post regularly about the Alabama Rules of Evidence in order to learn more about the Alabama Rules of Evidence and possibly to comment on them as I go. I will start with the first rule and go sequentially through the rules until I get to the last rule. Here we go:

Article I. General Provisions
Rule 101.
Scope.
These rules govern proceedings in the courts of the State of Alabama to the extent and with the exceptions stated in Rule 1101.

My comment: The Alabama Rules of Evidence apply in Alabama State Courts (Juvenile Court, Small Claims Court, District Court, Circuit Court and Probate Court) but not the federal district courts sitting in Alabama. The Federal Rules of Evidence apply in federal district courts. The Alabama Rules of Evidence and the Federal Rules of Evidence are modeled after a uniform rules of evidence and thus are very similar but do have some differences. Ala. R. Evid. 1101 basically excepts the following from application of the Alabama Rules of Evidence: Grand jury proceedings, criminal sentencing hearings, criminal probation hearings, bail hearings, and issuance of warrants for arrests and search warrants.

Address

821 Chestnut Street
Gadsden, AL
35901

Opening Hours

Monday 8:30am - 5pm
Tuesday 8:30am - 5pm
Wednesday 8:30am - 5pm
Thursday 8:30am - 5pm
Friday 8:30am - 5pm

Telephone

+12565475466

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