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Evidence standards: your mileage may vary

OakeyAs Roanoke lawyers pondered the prospects for an official Virginia Code of Evidence last week at a bench-bar conference, presenter John Oakey recalled the variations in trial gatekeeping by Virginia’s federal judges prior to the establishment of federal rules of evidence.  Judge Robert Merhige, he said, tended to follow the Virginia evidence law that he was most familiar with; Judge D. Dortch Warriner was “a little tighter.”

Then, there was the well-known, generous evidence policy of Senior U.S. District Judge James C. Turk, who tends to defer to juries on the consideration to be given to any disputed evidence.  Oakey recalled a 1976 case where Richmond’s Lewis Booker “vigorously” objected to certain testimony.  Turk responded, “Mr. Booker, I know it’s inadmissable.  You know it’s inadmissable.  The jury knows it’s inadmissable.  So let’s just go ahead, put it on and get out of here.”

By Peter Vieth

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