The Virginia General Assembly Needs to Adopt a Rules of Evidence

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1/12/2012
Scott Bucci
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The Virginia General Assembly Needs to Adopt a Rules of Evidence

As noted in our recent article, the General Assembly will take up a bill that establishes a Virginia Rules of Evidence. It’s about time. The law of evidence in Virginia is a mess.

The proposed rules walk a delicate balance between preserving the status quo on the actual substance of Virginia’s evidence law, and categorizing and organizing various evidence law principles in a cohesive way that mimics the organization of Federal Rules of Evidence.

So who would object to the Rules? Delegate Dave Albo has predicted that opposition to the proposed Rules will likely “come out of the woodwork.” My own sense is that objections will likely come from seasoned lawyers who resist change, because (a) they don’t want to have to relearn something that took years to ascertain, and (b) it isn’t fair that new lawyers get a clearer road map of Virginia evidence.

Let’s face it: because Virginia’s evidence law is so disorganized, it takes a long time and a lot of experience to get your arms around it. A particular principle of Virginia evidence law might be buried in Code Section 8.01, or mentioned in a Supreme Court case in 1983. It takes a lot of effort to simply figure out “what is the black letter law” on a particular issue. It would certainly be a legitimate concern to veteran trial lawyers if the new Rules were to usher in a new set of laws that would have to be relearned.

But the proposed Rules do not. In fact, the Code Commission went out its way to affirm that the Rules “are adopted to implement established principles under the common law and do not change any established case law rendered prior to the adoption of the Rules.” See Proposed Rule 2:103. Further, if a matter is not covered by the Rules, then the existing law remains in effect.

Moreover, the source notes from the Code Commission note that even though the proposed Rules follow the numbering system from the Federal Rules of Evidence, as is used in 42 other states, the numbering system is solely for convenience and “its use is not intended to make corresponding rules from other jurisdictions (and common law interpretations of them) applicable to these Virginia Rules of Evidence.” I anticipate that trial lawyers may refer to case law interpreting the Federal Rules of Evidence as persuasive to a Virginia judge, but good trial lawyers do that now anyways, and in any event such case law is not binding on a Virginia judge.

So the only other objection I can think of is that a veteran lawyer might not like that younger lawyers have an easier way to learn Virginia evidence law than they had to. My response to this is: quit being curmudgeonly.

Change is good. The General Assembly should adopt the proposed Rules of Evidence.

Labels: Circuit Court evidence