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Virginia high court resurrects Rules of Evidence

Deborah Elkins//October 4, 2011

Virginia high court resurrects Rules of Evidence

Deborah Elkins//October 4, 2011

Virginia’s code of evidence emerged from the shadows and came blinking into the sunlight yesterday.

The Supreme Court of Virginia has approved “Virginia Rules of Evidence,” clearing the way for enactment of a state code of evidence during the 2012 legislative session.

High court opposition has stymied adoption of official Rules of Evidence in Virginia for nearly 20 years, according to lawyers and legislators. But that hasn’t stopped lawyers and judges from using rules that have been circulating for years.

Under its new chief justice, Cynthia D. Kinser, the court has reconsidered the matter, and on Oct. 3, University of Virginia law professor Kent Sinclair presented court-endorsed Rules to the Virginia Code Commission. The commission is set to act on a draft bill at its Dec. 5 meeting, and commission chair Sen. John Edwards, D-Roanoke, is ready to carry a bill forward.

The rules in circulation are no bootleg copy consulted in secret behind an open briefcase, but a codification of rules by the Boyd-Graves Conference, drawn directly from Virginia case law and distributed to trial judges by the high court itself.

This “Guide to Evidence in Virginia,” a best-seller for Virginia Continuing Legal Education, amounts to a “shadow set of the rules of evidence,” said Sinclair, the official reporter of Virginia Supreme Court opinions. The evidence rules just endorsed by the Supreme Court make no substantive changes from versions of the rules in circulation since the mid-2000s, Sinclair said.

When he got his copy of the Supreme Court Rules of Evidence, “I nearly dropped over backwards,” said commission member E.M. Miller Jr., Director of the Division of Legislative Services.

Sinclair traced the long and winding road that has kept the commonwealth as one of the last holdouts for adoption of formal rules of evidence. Today, only Massachusetts and Virginia do not have state codes of evidence.

Edwards said discussions about Virginia evidence rules started about 20 years ago, when he chaired the criminal law section of the Virginia Bar Association. He thought they would be adopted then.

Sinclair had a graphic demonstration of why Virginia needs formal rules of evidence. He illustrated his timeline with a snapshot of rows and rows of Virginia reporters, with over a thousand decisions that are the source for evidence law in Virginia. Even with case law online, you can’t just do a Google search and come up with a rule of law.

Lawyers in court have to act quickly to articulate the reasons to let evidence in or keep it out, and judges have to rule in real time. A trial judge can’t just call a recess to let everyone rummage through the court cases. They often adopt the shorthand of asking trial lawyers what Friend – Charles E. Friend’s treatise on the Law of Evidence in Virginia – has to say about a disputed point.

The current Virginia Code has scattered statutes that codify particular rules of evidence. The Division of Legislative Services is working to coordinate existing provisions, which may be retained in the Code or repealed and included in the Virginia Rules of Evidence.

“About three-fourths of evidence law is not included in the Virginia Code,” Sinclair said. There are no provisions on routine evidentiary issues such as character proof, “one of the most difficult things to get right,” and impeachment of a witness by showing bias, “one of the most basic ways of attacking a witness.”

Friend may be “the de facto handbook” of Virginia law on evidence, but trial judges also can reach for the Virginia CLE Guide. Last year, the high court obtained 600 copies of the Guide for distribution to trial judges.

The commission spent some time discussing the mechanics of turning the Virginia Rules of Evidence into law, with Edwards suggesting there would be an up or down vote on the Rules as a whole. Further amendments to evidence rules would be handled as are changes in current court rules, with the Supreme Court adopting changes, subject to legislative response. Only a handful of states have enacted rules of evidence into their statutory codes, Sinclair said, and the “vast majority” use rules of court.

Commission member Robert L. Calhoun, an Alexandria lawyer and former state senator, advocated wider dissemination of the rules approved by the Virginia Supreme Court.

“The last time I saw this was 1994. I don’t think a whole lot of attorneys, unless they’re bar association mavens, have paid a whole lot of attention,” he said.

Sinclair said the chief justice has invited representatives of bar groups to meet with her Oct. 17 to offer additional feedback on the proposed rules.

“There could be opposition. Bar groups don’t necessarily speak for all lawyers in the state,” Calhoun said.

Sinclair’s report underscored that “no judge, individual lawyer or organization in Virginia has ever communicated opposition to the adoption of these Rules – either during the several comment periods while the drafting of the Rules was in progress, or at the numerous bar and educational programs offered about the Rules.”

“If there’s no objection from anybody, how come” it’s taken so long, asked commission member Sen. Ryan T. McDougle, R-Mechanicsville.

It’s been “the chief justice,” Miller said, referring to Kinser’s predecessors.

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