Rule 43. Evidence

Evidence.

(a) Form and admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided in these rules. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location. Testimony in any uncontested action involving a divorce or annulment of marriage shall be taken before the clerk, unless otherwise ordered by the judge. In such a case the clerk shall have the powers of a master as provided in Rule 53 and shall follow the procedure therein, or in cases of default or upon written waiver the testimony may be taken upon deposition on oral examination, in accordance with prior practice, and at any time and without notice of the time and place of the taking or other proceeding therein. When depositions on oral examination have been taken, they shall be filed in the clerk’s office without any other transcript of the proceedings or of the evidence and without any further report by the clerk. However, nothing contained in this paragraph shall prevent the parties from taking testimony by agreement in a manner different from herein provided unless the court limits or prohibits such agreed manner. All evidence shall be admitted which is admissible under statute or under the rules of evidence which are now applied or shall hereafter be applied in the courts of the State of Alabama.

(b) [Omitted.]

(c) [Omitted.]

(d) Affirmation in lieu of oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof. The court may, but shall not be required to, frame such affirmation according to the religious faith of the witness.

(e) Evidence on motions. When a motion is based on facts not appearing of record the court unless a jury is required may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. Nothing herein shall be construed to enlarge or abridge the right to trial by jury.

(f) Interpreters. The court may appoint an interpreter of its own selection and may fix the interpreter’s reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.

(dc) District court rule. Rule 43 applies in the district courts except that (1) the reference to domestic-relations cases in Rule 43(a) is deleted and (2) the reference to a jury in Rule 43(e) is deleted. [Amended eff. 10-1-95; Amended eff. 1-1-96; Amended eff. 11-23-2020; Amended eff. 3-25-2021.]

Committee Notes

Committee Comments on 1973 Adoption Rule 43(a). This rule makes a substantial change in equity practice in Alabama. Former Equity Rule 40, provides that, with certain exceptions, testimony in equity cases must be taken by interrogatories filed in the Register’s Office. The exceptions relate to oral testimony before a commissioner or before the court upon motion by a party or ex mero motu. Rule 43(a) will make oral testimony before the court in an equity proceeding the rule, rather than the exception. This desirable change gives the trial court the obvious advantage of observing the demeanor of witnesses so as to determine more readily their veracity (or lack thereof) and the weight to be given their testimony. Further, this change will materially advance the ultimate termination of the proceeding in that the evidence can be considered by the court as it is taken rather than the former practice of piecemeal taking of testimony by interrogatories over a period of many months for presentation to the court in “canned” fashion. Note that the requirement for oral testimony is qualified by reference to other rules which might provide otherwise. For example, see Rule 32(a) wherein provision is made for use of depositions at trial under certain circumstances. Rule 32 applies to depositions upon oral examination pursuant to Rule 30 and depositions upon written questions pursuant to Rule 31. See also Rule 53, Masters. Particularly, note Rule 53(d) wherein a reference can be ordered by the court and Rule 55, Default, also permitting a reference upon default. The present Alabama practice with respect to presentation of evidence to the Register or a Commissioner in a default divorce proceeding will not be changed. Rule 55 authorizes the court to order a reference wherein a default has occurred. The circumstances justifying a reference in Rule 53, Masters, limit the occasions wherein a reference is permissible. These limitations arguably apply to Rule 55 references. Further, Rule