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FROM: Evidence Committee TO: Boyd Graves Conference DATE: August 2011 FROM: Evidence Committee W. Coleman Allen, Esq. James O. Broccoletti, Esq. Hon. Rudolph Bumgardner, III Richard A. Conway, Esq. Joseph C. Kearfott, Esq., Ckair Hon. D. Arthur Kelsey Hon Stephen R. McCullough Kenneth Montero, Esq. John M. Oakey, Jr., Esq. Prof. Kent Sinclair, Project Reporter Thomas W. Williamson, Jr., Esq. The Evidence Committee met by telephone to consider what revisions are necessary to A Guide to Evidence in Virginia in light of the recent Legislative season and case law from the appellate courts in the prior 12 months. The Committee concluded that relatively few changes are needed. The revisions that the Committee believed should be made are shown in shaded areas in the portions of the Guide that follow. These changes will be reflected in the 2012 edition to be published toward the end of this year. -1- A GUIDE TO EVIDENCE IN VIRGINIA 2012 Edition A Guide to Evidence in Virginia is intended to restate the present law of evidence in Virginia in a single, organized body of principles for the convenience of judges and practitioners alike. It is not intended to change any aspect of Virginia law. The evidence sections in the Guide have been drafted and revised over a period of more than 15 years by a committee composed of both plaintiffs’ and defense lawyers, commercial and criminal law practitioners, as well as law professors, judges, and former judges. Leading cases are cited in the notes to each section. Where the General Assembly has covered a topic by statute, the Guide simply incorporates the governing provision. The drafting committee invites comments and suggested corrections or improvements to the Guide. The goal is to develop a volume that allows easy access--in one place--to the governing principles which at present are embedded in 200 years of case taw, several statutes, and rules of court. Specialized proceedings may involve procedures and evidentiary provisions different from those in ordinary Virginia judicial proceedings, described in the Guide. It should also be noted that the Guide does not address matters of substantive law, which may affect admissibility of categories of proof, or that are based on constitutional requirements that also may preclude or require admission of certain categories of proof. "Reserved" sections. Where the drafting committee has noticed that most jurisdictions have a provision on a particular subject, but no definitive Virginia law has been located, the topic is marked "Reserved" in this Guide, to await further development of the law on that topic. A Guide to Evidence in Virginia was prepared by the Boyd- Graves Conference of the Virginia Bar Association, and the Virginia Bar Association reserves all rights therein. Unauthorized reproduction is prohibited. To obtain permission, which will be liberally granted for research and educational purposes, to reprint A Guide to Evidence in Virginia, in whole or in part, contact Evidence Committee, c/o the Project Reporter, Professor Kent Sinclair, Virginia Law Building, 580 Massie Road, Charlottesville, Virginia 22903-1789. This edition has been updated to reflect developments through August 2011. Not~upaates § 404(~), (new ~e,la~i_on the proper f~rmof character witness §.~O~:~:i~ ~!--~il (~ot~i~a.~,~ti~.~i~rega~ding the f0~,~..ation needed for expert §~ :~ : : (not~ addi~i0ns rel~ardinl~ defects io t~e foundation for §803(29) : (note rews~on on const=tut=onahty of the p ce guide~i: -3- § 804(a)::(nffw c~ecitatio~ regarding u.,na$ailability of a witnessf~r § 804(b)(6)_ :i ,i~::(new case citation on "interested witnesses" in dead-man situations) § 90:[ ::(updated statutory citations) §9102(4) ,:. ~ (new caselnote concernin8 admission of circuit court re~,.ords) § -i- (added statutory references) Copyright 8 2011 The Virginia Bar Association on behalf of the Boyd-Graves Conference. All rights reserved. These provisions are intended to state existing Virginia case and statutory law on evidence. They are not intended to change Virginia law. The sections should be construed in accordance with this intent. -4- ARTICLE II. JUDICIAL NOTICE § 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS NOTE Subdivision (a). This subdivision permits notice of facts beyond reasonable controversy. Griswold v. Commonwealth, 19 Va. App. 477, 484, 453 S.E.2d 287, 290 (1995), rev’d on other grounds, 252 Va. 113, 472 S.E.2d 789 (1996) ("The trial court may take judicial notice of facts which are either (a) common knowledge or (b) easily ascertainable by reference to reliable sources. These are two separate and distinct grounds for judicial notice."). See generally Thomas v. Commonwealth, 48 Va. App. 605, 633 S.E.2d 229 (2006). The key to a fair trial is the opportunity to use appropriate tools (rebuttal evidence, cross- examination, and argument) to meet adverse material. These considerations call for dispensing with traditional methods of proof only in clear cases. Courts may take judicial notice of matters which are "common knowledge" or part of the "general experience of society." Keesee v. Commonwealth, 216 Va. 174, 175, 217 S.E.2d 808, 810 (1975); Taylor v. Commonwealth, 28 Va. App. 1, 502 S.E.2d 113 (1998); see, e.g., Thacker v. Commonwealth, 131 Va. 707, 108 S.E. 559 (1921) (whiskey is intoxicating). The courts may also take judicial notice of "easily ascertaina’ble facts." See, e.g., Ryan v. Commonwealth, 219 Va. 439, 446, 247 S.E.2d 698, 703 (1978) (newspaper time charts establish sunrise); Johnson v. Commonwealth, 141 Va. 452, 126 S.E. 5 (1925) (locatiori in question appears on maps in common use). This provision does not change the Virginia rule that a trial court may not take judicial notice of the authenticity of its records, judgments, and orders in other and different cases or proceedings, even though such cases or proceedings may be between the same parties. Young v. Commonwealth, 194 Va. 780, 75 S.E.2d 479 (1953}; Fleming v. Anderson, 187 Va. 788, 794, 48 S.E.2d 269, 272 (1948}; see also Taylor, 28 Va. App. 1, 502 S.E.2d 113. O~:~cial hotice 0f:a.t~l c0firt!s :~W~ records; s~e Williams v, Comrnonw~!~ ~7~ii~pp~ ~50, 706 :S’E~2d 530~2011)i A trial court "will not travel outside the record of the case before it in order to take notice of the proceedings in another case.., unless the proceedings are put in evidence." Bernau v. Nealon, 219 Va. 1039, 1043, 254 S.E.2d 82, 85 (1979). For judicial notice of official publications, see Va. Code § 8.01-388 (set forth infra in § 902(5) of this Guide). Regarding the use of encyclopedias and similar reference works by the courts, see Harrison-Wyatt v. Ratliff, 267 Va. 549, 593 S.E.2d 234 (2004). Subdivision (b). In accord with the general view, judicial notice may be taken at any stage of the proceedings, whether in the trial court or on appeal The Virginia Supreme Court has, on its own motion, taken judicial notice of facts. See Lakeside Inn Corp. v. Commonwealth, 134 Va. 696, 114 S.E. 769 (1922} (that January 8, 1922, fell on a Sunday). Note, however, that the court has declined to allow notice at the appellate level to suppl:~ elements which should have been proven in the trial court. See, e.g., Rufty v. Commonwealth, 221 Va. 836, 275 S.E.2d 584 (1981}. Subdivision (c). Basic fairness demands that counsel have’ an opportunity to be heard on the propriety of taking judicial notice. State Farm Mut. Auto. Ins. Co. v. Powell, 227 Va. 492, 318 S,E.2d 393 (1984) (error to take notice where party "had no prior opportunity to be heard either to dispute the ’facts’ or to object to the court’s action"). Often, a request for the taking of judicial notice will afford the adversary an opportunity to comment on whether a -5- factual matter is truly incontestable. In the absence of advance notice, a request to be heard made promptly after the fact should be considered timely. This provision takes no position on the effect of judicial notice in civil or criminal cases, or on the issue of appropriate instructions to the jury with respect to facts noticed. In Williams v. Commonwealth, 190 Va. 280, 292, 56 S.E.2d 537, 542 (1949), the court observed in a criminal case that, after judicial notice has been taken, "the opponent is not prevented fi-om disputing the matter, if he believes it disputable." This doctrine allows a criminal defendant to contest a judicially noticed fact, which avoids any constitutional issues about the taking of notice against a criminal defendant. ARTICLE IV. RELEVANCY, POLICY, AND CHARACTER § 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES NOTE Subsection (a). The general rule excluding character proof is Virginia law. Williams v. Commonwealth, 203 Va. 837, 127 S.E.2d 423 (1962) (criminal case); Commonwealth. ex tel. Davis v. Malbon, 195 Va. 368, 78 S.E.2d 683 (1953); S.H. Kress & Co. v. Roberts, 143 Va. 71, 129 S.E. 244 (1925) (civil proceeding); National Union Fire Ins. Co. v. Burkholder, .116 Va. 942, 83 S.E. 404 (1914). Subsections (1) and (2) generally apply to criminal cases while subsection (3) applies to civil and criminal cases. Note: Isolated acts of prior bad conduct are not admissible on this basis in civil or criminal cases. See McMinn v. Rounds, 267 Va. 277, 591 S.E.2d 694 (2004) (admissibility in certain civil cases). (1) The exception to the general rule of exclusion permits a criminal defendant to introduce evidence of his character, Barlow v. Commonwealth, 224 Va.
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