Supreme Court of Virginia clarifies the Rules of Evidence

Andrew R. Alder, Esquire
January 7th, 2015
By: Andrew R. Alder, Esquire

On November 12, 2014, the Supreme Court of Virginia clarified the rules of evidence regarding the admissibility of prior witness statements at trial. It did so by modifying Rule 2:801, the definition section of the rules governing hearsay. The modified rule now sets forth with greater clarity exceptions to the general rule that a witness’s prior statements are inadmissible hearsay.

Regarding a witness’s prior inconsistent statements, Rule 2:801 as modified states that such statements are admissible to impeach a witness’s credibility. The clarification is based on Rule 2:613, which already governs aspects of using prior statements of witnesses, and a long history of Virginia cases permitting the use of prior inconsistent statements to impeach. See, e.g., Russell v. Commonwealth Transp. Comm’r of Va., 261 Va. 617 (2001); Cassady v. Martin, 220 Va. 1093 (1980); Neblett v. Hunter, 207 Va. 335 (1996).

Additionally, Rule 2:801 as modified states that prior consistent statements are admissible for purposes of rehabilitating a witness’s credibility if (a) the witness has been impeached by a prior inconsistent statement; or (b) the witness has been impeached based on alleged improper influence, motive to falsify testimony, or recent fabrication, so long as the prior consistent statement was made before any litigation motive arose for the witness to make a false statement.

This clarification reflects prior court rulings, including two 2011 cases, decided by the court on the same day. In Anderson v. Commonwealth, 282 Va. 457 (2011), a criminal case, defense counsel during cross-examination of the victim asked questions regarding the victim’s prior statements that were inconsistent with her testimony at trial. The court held that the Commonwealth was permitted to then introduce into evidence prior consistent statements to refute the defense’s effort to impeach the witness by a prior inconsistent statement. The court further held that this hearsay exception is “triggered by the introduction of a prior inconsistent statement” and thus “is not dependent upon a contention . . . that the witness has a motive to falsify.”

In Ruhlin v. Samman, 282 Va. 371 (2011), a personal injury case involving a motor vehicle accident, a witness testified concerning statements the plaintiff had made that were consistent with statements the plaintiff made at trial. Plaintiff’s counsel argued that such testimony is admissible under a hearsay exception to rebut the defense’s allegation of recent fabrication. Though the court held that in this case there was no allegation of recent fabrication and thus excluded the prior consistent statements, the court stated that such an exception does exist when “the witness has been subjected to specific forms of attack, and the offered prior consistent statement was made before any litigation motive of the declarant to make self-serving statements would have arisen.”

The modification of Rule 2:801 clarifies and simplifies the court’s various rulings concerning exceptions to the inadmissibility of prior statements. The rule goes into effect July 1, 2015 and will benefit practitioners and judges alike by making this evidentiary rule clearer.


This blog and the information provided has been prepared by Bancroft, McGavin, Horvath & Judkins, P.C. (“BMHJ”) for information purposes only and is not intended nor to be construed as legal advice. This blog may contain the opinions of the members and associates of this firm on various legal issues and is not legal advice. Read More