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Courts committee has questions on Rules of Evidence

Some lawyer members of a House subcommittee studying proposed Rules of Evidence fear the proposed legislation would change the balance of power between the legislature and the Supreme Court.

What happens to the body of common law the Rules codify, and what is the process for changing the Rules, going forward, subcommittee members wanted to know. Del. C. Todd Gilbert, R-Woodstock, chairs the House Courts subcommittee on evidence and led today’s discussion.

The legislation, House Bill 101, is sponsored by House Courts Committee Chair Dave Albo, R-Fairfax, Del. Manoli Loupassi, R-Richmond and Del. Betsy Carr, D-Richmond.

UVa law professor Kent Sinclair outlined the process leading up to the current Rules, speaking on behalf of the Boyd-Graves Conference recommendation to adopt the Rules of Evidence.

“Case law will continue to evolve,” Gilbert said. “From a process standpoint, if the Supreme Court decides it has changed its mind” on a Rule, “what will be the process by which it updates” the Rules, he asked. According to Sinclair, the legislation is designed to keep in place the same process by which the Supreme Court makes changes in any other rules of court. Rule changes are proposed by the court’s advisory committee on rules, then adopted by the Supreme Court, subject to change by the legislature.

It’s a process that already happens on an annual basis, Sinclair indicated. “The General Assembly passes things every year that affect [court rules] and the advisory committee amends rules so they conform exactly to what the General Assembly has done,” he said.

Sinclair cited legislative response to the Supreme Court decision in Ligon v. Southside Cardiology Assocs., involving evidence of “habit,” as an example of how the General Assembly historically has asserted its role in deciding the law of evidence.

But some legislators saw a distinction between current court rules and the Rules of Evidence.

The rules of court are “management of court rules,” rules of evidence are “more substantive law,” said Del. Greg Habeeb, R-Salem. “I see much greater opportunity for conflict on an ongoing basis,” session to session. “We’re giving the court a little bit of legislative power, along with its interpretive power.” Habeeb said the result could “lead to some very fun courts committee meetings down the road.”

HB 101 is not an abdication of legislative power, Loupassi said. Currently, the Supreme Court can issue a case decision and the General Assembly can come back into session and pass a statute and “change the rules as it sees fit. This doesn’t change the current relationship and power structure,” he said

“This dramatically changes Supreme Court power. The Supreme Court currently is limited by restraints and checks on how courts can change” the law, as cases are presented “on specific records, with particular assignments of error,” Habeeb said.

Sinclair said administering the Rules of Evidence the same way as other current court rules would provide “more warning than just announcing a court decision.”

“There’s a certain way to process rules, but this is kind of a hybrid, it’s not mere process, not writing law, but something in between. How do I know going forward that some activist Supreme Court won’t try to change the law by changing the rules,” Albo asked.

Legislators also discussed a possible need to amend the legislation to clarify the status of the body of case law from which the proposed Rules of Evidence derived.

“If I have a case that’s better for me,” but the prosecutor argues a Rule of Evidence, Albo said he wanted to be free to argue the case. “We need to spell this out, this does not repeal the common law.”

Albo said the subcommittee needs more time to work through some of these issues before the bill goes to the whole committee. The evidence subcommittee plans to meet again Feb. 3 for more discussion of HB 101.

Richmond lawyer Hugh Fain, president of the Virginia Bar Association, and Charlottesville lawyer Lee Livingston, speaking for the Virginia Trial Lawyers Association, also spoke in support of the legislation.
–Deborah Elkins

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