A Brief Primer on Virginia Rules of Evidence - Or, How Not to Lose Before You Walk in the Courtroom

As always, before reading this post, please review my disclaimer by following the link above, or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Since starting this blog I have lost count of the number of e-mails I have received saying, "Hey, I took your blog's advice to do x, but I lost because of y - what's your opinion of what happened?"  First, let me be crystal clear.  As it says in my disclaimer, and at the top of each and every page of my blog, this blog is not advice.  It is a presentation of how, from my perspective, things work in the legal world in Virginia.  It is general information - I cannot predict every situation that might come up, and so the odds are very high that there is something about your case that makes the general information applicable, yes, but also incomplete.  Please do not take my blog posts as advice - except for the one piece of advice I always give: hire an attorney, or at least speak to one.

Now, with that out of the way, 9 times out of 10 I've found that I have to agree with the judge that the person should have lost.  While there have been exceptions, the vast majority of times that this is the case, it is because the judge wouldn't look at the person's evidence - and I have to agree that the judge was right, because the person did violate the rules of evidence.  This is one more reason that it's so important to have an attorney - an attorney will save you from these pitfalls.  If your opponent has an attorney, this is especially true.  Attorneys know that pro se parties rarely know the rules of evidence, and will take advantage of that fact at trial - something they are perfectly allowed to do.  Heck, it's something I've done myself, and then wrote about on this blog.

To that end, I feel like it's necessary to cover some of the basics of the Virginia Rules of Evidence.  Note, however, that I cannot hope to cover nearly all of the rules in one blog post (or even several), so my advice remains to have an attorney represent you in court.  Nonetheless, with the information on this blog you can hopefully avoid at least some of the pitfalls of not knowing the rules of evidence - and maybe even figure out when to object if your opponent violates the rules.

Where to Find the Rules

You, my friend, are currently living in a Golden Age in terms of evidence rules in Virginia.  Why?  Because back when I started practicing law, Virginia had no set rules of evidence (unlike basically every other state, plus the federal courts).  All we had was a disconnected mish-mash of statutes and common law rules that we basically had to memorize.  In 2012, however, that all changed when the Virginia General Assembly adopted the Virginia Rules of Evidence.  The Rules are now entirely collected in Part 2 of the Rules of the Supreme Court of Virginia.  The Rules as adopted tried to incorporate the rules as they previously existed, although some minor changes were made, but the revolutionary component was that now the rules are all in one place, so someone can go and learn them.

Hearsay

So, by far the most common complaint I hear is about application of the rule against hearsay.  Most people know that hearsay is inadmissible, but almost no one outside the legal profession seems to know what hearsay is.  Hearsay, quite simply, is any statement made by any person, unless it is made by that person on the witness stand while testifying at the trial, when that statement is offered as evidence to prove the truth of the matter asserted.

So, there's a lot in there to break down.  First, what's a statement?  A statement is defined in Virginia rules as "an oral or written assertion" or "nonverbal conduct of a person, if it is intended as an assertion."  In other words, something is a statement if it asserts that something is true.

Now, what does it mean that the statement is "offered as evidence to prove the truth of the matter asserted"?  It means a statement is not hearsay if the content of the statement is relevant for some reason other than the truth of the matter asserted in the statement.  In other words, if the statement is just as relevant and important if the statement is a lie as it would be if it were true, then it is not hearsay.

This is a confusing point for many people, so I'll take two examples.  The first is one we learned about in law school.  Some time ago there was a plane crash with a husband and wife aboard.  Both died, but it was important to establish who died first for the purposes of distributing the couple's assets in inheritance.  A police officer testified that when he went to the scene the wife was dead, but the husband told him "I'm alive."  There was a hearsay objection that was actually sustained, but this was overturned on appeal.  Why?  Because it didn't matter whether the statement was true or not.  The husband's statement could have been "I'm Genghis Khan back to rule my Empire" and it would have been just as relevant.  The fact that the husband made a statement at all meant he was alive and the content of the statement was thus irrelevant, so it was not hearsay.

A second example would be where you are accused of fraud for claiming in a loan application that you had more money than you actually had.  If you present a statement from your financial advisor saying that you had the higher amount of money, that statement should not be subject to a hearsay objection because whether or not the statement was true (and in this case, it wasn't) is not important - the fact that you had this statement, so you believed it, provides evidence on its own that you did not have the necessary intent to commit fraud.

Exceptions to Hearsay Rule

So, now that you hopefully have a better understanding of hearsay, you might be wondering how all sorts of evidence you hear about ever gets into evidence.  Well, that's because there are a large number of exceptions to the hearsay rule - in other words, situations where a statement is hearsay, but is still admissible.

The Virginia Rules of Evidence separately list 29 exceptions, but if you read each one, many of them have separate exceptions as well.  Here are some of the most important for you to know:

• Opposing Party Admission - The short version of this is that if you are a party to a lawsuit (or a criminal trial), anything you've said can be used against you.  Not for you, just against you.  Of course, the reverse is true - you can use anything the other party has said against them to.
• Statement for the Purpose of Medical Treatment - Any statement you made to a doctor or anyone else for the purpose of obtaining medical treatment is admissible evidence.  Note, however, this is limited to only that information necessary (or reasonably believed necessary), not extraneous information given.
• Business Records - One of the most important exceptions, this allows any documents produced by a person or business in the course of running their business and which is of a type that is usually produced by such a person or business when running their business is admissible.
• Public Records - Records of observations made by government agencies or courts, except for police reports, which do not qualify for the exception.
• Former Testimony - Any testimony previously given under oath where the party against whom the evidence is offered had the chance to cross-examine that person, and that person is not available to testify at the current trial.
• Prior Inconsistent Statements - While not listed in the hearsay exceptions, this is an important one - if a witness on the stand has previously made a contradictory statement, that statement can be brought up and used to challenge the credibility of the witness on cross-examination.

These are, of course, only a few of the exceptions, but they are the ones I see most often.

A Brief Word About Double Hearsay

We often encounter in law "double hearsay" or "hearsay within hearsay."  The easy breakdown of this is that direct testimony is saying "I saw Tommy do it," while hearsay is "Dave told me he saw Tommy do it."  Well, double hearsay would be, "John told me that Dave told him that he saw Tommy do it."  So, how do you handle double hearsay?  You have to look at each hearsay component and decide if an exception applies.  If it applies to both (for example, a business record quoted an opposing party admission), then it's still admissible.  If either one of the hearsay examples, however, does not fit an exception (for example, a business record quotes prior testimony where the person giving that testimony is available to testify at the current trial, or a police report quotes an opposing party admission), then the double hearsay is not admissible.

Authentication of Evidence

Most situations where a party has failed to understand the rules of evidence fall in the above category, but I occasionally find that a person has, in fact, found an exception but still didn't get their evidence admitted because it was not properly authenticated.  So, what is authentication?  Authentication is the requirement that evidence must be sufficiently proven to actually be what it is before it can be admitted.  For example, the letter showing your job offer which you introduce to prove your income may be a business record, but your word alone is not sufficient authentication that this is actually your employer's business record - only your employer's testimony or an affidavit can meet this condition.

In other words, it is not enough to make sure your evidence does not violate any of the rules that would exclude it - you must also make sure you can authenticate it, that you can prove that it is what you say it is.  Otherwise, it will not be admitted.  That all being said, some documents are what we call "self-authenticating," meaning that as long as certain conditions are met, no further authentication is necessary.  A full list of such documents can be found in Rule 2:902, but some of them are public records which are certified in the manner required by law, medical records and bills in certain cases where certain conditions are met, and business records where the custodian of records has signed an affidavit confirming the authenticity of the documents and no objection has been filed to the affidavit.

Settlement Discussion

The other problem I see people encounter, although much less frequent than problems with hearsay or authentication, is the presentation of settlement discussions.  I see quite often with pro se parties they want to tell the judge "well, I offered to do this, and they wouldn't even do that!" to try to prove how unreasonable the other side is.  Well, the courts decided long ago that settlements will be much harder to have happen if the statements made while negotiating them could then be used against the parties.  As a result, offers and responses in the course of settlement negotiations are not admissible evidence.

There are two key exceptions to the above.  If, in the course of settlement negotiations, you actually admit you are liable, then that admission (and only that admission) becomes admissible.  Also, where attorneys' fees are collectible by one or both parties, the settlement negotiations may be admitted as evidence as to whether or not the attorneys' fees are reasonable (as unreasonably refusing a good settlement offer may make your trial fees unreasonable), but in such cases that is all that the negotiations can be considered for.

Conclusion

For many people who represent themselves at trial, their biggest pitfall is the rules of evidence.  With this blog post, I hope you understand at least some of the complex panoply of rules you will face if you go to court alone.  This is yet another reason why you should almost always try to have an attorney.  If you are facing a civil trial and recognize that you don't understand the rules of evidence well enough to protect yourself, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!