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Will there Finally be a Virginia Rules of Evidence?

One of the more interesting bills in the 2012 General Assembly session is one that would adopt a Virginia Rules of Evidence. Currently, Virginia is one of only two states that does not have a codified Rules of Evidence. Instead, Virginia’s evidence rules are a hodgepodge of Virginia Supreme Court decisions and Virginia Code provisions.

The proposed Virginia Rules of Evidence have been designed to organize Virginia’s existing evidence law from this hodgepodge and into an organized system. The chapters follow the Federal Rules of Evidence, and to a large extent adopt the language from the Federal Rules.

However, the Code Commission was careful to note that the proposed Rules do NOT adopt the Federal Rules. In fact, the proposed Rules explicitly state that the proposed Rules make NO changes to the existing common law in Virginia.

For example, one area where the proposed Virginia Rules differ from the Federal Rules concerns the admissibility of expert testimony. Federal Rule of Evidence 702 contains the qualification that experts may give an opinion “if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” However, the proposed Virginia Rule contains none of this language, suggesting that a showing of reliability of an expert’s opinion will continue to be more flexible in state court than federal court.

A Virginia Rules of Evidence will be a welcome change to most trial lawyers. Rather than having to carry around Friend’s on Evidence and a copy of Code Section 8.01, a trial lawyer can simply bring a streamlined Rules of Evidence whenever he or she goes to trial.