EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, January 18, 2009

Meet Virginia: Supreme Court of Virginia Opinion Reveals That Virginia Has Different Expert Evidence Rule Than Do The Federal Rules

The recent opinion of the Supreme Court of Virginia in Commonwealth v. Wynn, 2009 WL 103364 (Va. 2009), reveals an important distinction between the Virginia Code and Federal Rule of Evidence 703.

In Wynn, the Commonwealth filed a petition in circuit court for the civil commitment of Freddie Lee Wynn as a sexually violent predator under the Sexually Violent Predators Act.  At the time, Wynn was incarcerated on two convictions for aggravated sexual battery of a child under age thirteen.  After the circuit court determined that probable cause existed to believe Wynn was a sexually violent predator, Wynn elected to have a trial by jury. At the conclusion of the evidence, the jury returned a verdict finding that Wynn was not a sexually violent predator, and the circuit court entered an order in accordance with the jury verdict.

The Commonwealth subsequently appealed, claiming that the circuit court made two erroneous evidentiary rulings:

     "The first evidentiary ruling occurred during the Commonwealth's direct examination of Dr. Miller [who testified that Wynn suffers from pedophilia, paraphilia, and antisocial personality disorder]. The Commonwealth attempted to elicit testimony about allegations of sexual misconduct by Wynn made by children other than the victim involved in Wynn's two aggravated sexual battery convictions. Dr. Miller had learned about those allegations, which concerned sexual abuse that supposedly occurred during the same time frame as the sexual batteries for which Wynn was convicted, by reviewing documents in a file maintained by the Assistant Commonwealth's Attorney who had prosecuted Wynn. When the Commonwealth asked Dr. Miller to relate specific information about those other allegations, Wynn objected, stating that the allegations were 'hearsay upon hearsay' and he could not cross-examine either the accuser, the person who prepared the documents detailing the allegations, or the individual who created the file. In response, the Commonwealth asserted the allegations constituted information Dr. Miller relied upon in arriving at his conclusions and the jury could decide what weight to give his opinions based on those allegations."

The circuit court determined that "Dr. Miller could testify that there were allegations from other children, but had to omit the specific details of those allegations."

On appeal, the Commonwealth claimed that the details of those allegations should have been admissible pursuant to Federal Rule of Evidence 703, which states that:

     "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect."

As is clear from the last sentence of this Rule, otherwise inadmissible facts or data upon which an expert relies can be admissible if they successfully navigate the probative value/prejudicial effect tightrope, which the Commonwealth claimed that the evidence at issue did.  But the problem for the Commonwealth was that Wynn was heard in Virginia state court and was thus governed by the Virginia Code, not the Federal Rules of Evidence.

And as the Supreme Court of Virginia correctly noted, while the analogous Virginia Code Section 801.401.1 "was based, in part, on Federal Rules of Evidence 703 and 705, there is a significant difference between our statute and Federal Rule of Evidence 703."  This different is evident from the text of Virginia Code Section 801.401.1, which states that:

     "In any civil action any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify. The facts, circumstances or data relied upon by such witness in forming an opinion or drawing inferences, if of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences, need not be admissible in evidence.

     The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

     To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by testimony or by stipulation shall not be excluded as hearsay. If admitted, the statements may be read into evidence but may not be received as exhibits. If the statements are to be introduced through an expert witness upon direct examination, copies of the statements shall be provided to opposing parties thirty days prior to trial unless otherwise ordered by the court."

This text makes clear that Virginia Code Section 801.401.1 "does not contain th[e] proviso" that otherwise inadmissible facts or data upon which an expert relies can be admissible if they successfully navigate the probative value/prejudicial effect tightrope.  Thus, the Supreme Court found that there was no basis for the admission of the details of the hearsay allegations against Wynn and affirmed the circuit court's judgment (after finding that the Commonwealth's other evidentiary objection was also without merit).



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