En banc rehearing granted in child testimony case

Where a Court of Appeals panel ruled that a child’s out-of-court statements were admissible, despite the trial court’s ruling that the child was incompetent to testify in a sexual assault case, a petition for rehearing en banc is granted.

Petition granted

“On December 19, 2022 came the appellant, by court-appointed counsel, and filed a petition requesting that the Court set aside the judgment rendered herein on December 6, 2022, and grant a rehearing en banc on the issue(s) raised in the petition.

“On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia, the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.

“The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and served on opposing counsel.”

Bista v. Commonwealth, Record No. 0904-21-4, Jan. 10, 2023. CAV (en banc) (published order). Upon a Petition for Rehearing En Banc. VLW 023-7-001, 50 pp.