Monday, April 13, 2015
This is the introduction to a short series of posts reporting selected findings from my most recent project, a concise reference volume comparing the Virginia and Federal Rules of Evidence. Book-length federal-to-state evidence rule comparisons exist for most major United States jurisdictions, including California (Miguel Mendez), Florida, New York and Texas (Peter Nicolas). Until now, Virginia has been a notable omission.
Not coincidentally, Virginia codified its evidence rules in 2012 – yes, only three years ago! (Kent Sinclair of the University of Virginia headed the codification project.) Prior to codification, Virginia’s evidence rules consisted of a judge-made common law of evidence supplemented by sporadic (often clumsy) statutory interventions. If you wanted to make an evidence objection in a Virginia court, your best bet was to reference the dominant treatise. Everyone could then consult their copy of the 1000+ page behemoth and argue vociferously. It was like practicing in Colonial times, only with air conditioning.
The 2012 codification project sought to put an end to the evidentiary chaos. A side benefit of the codification is that by crystalizing its own evidence rules, Virginia allowed those rules to be contrasted with other codified evidence rules, such as the Federal Rules of Evidence, in a concise volume. Three years later (I had some other things to do as well!) my book arrived.
The most obvious utility of this series, and my book, is for attorneys or law students who learned evidence with the federal rules (as most do), but practice in Virginia courts. (Virginia policymakers should take a look as well.) But don’t feel left out if you don’t fall in those categories. The book’s exploration of distinctions between two longstanding, deeply considered evidence codes also highlights important policy choices made by the evidence rule makers in the respective jurisdictions. I learned as much about the Federal Rules as I did about the Virginia Rules in taking on this project.
The Virginia and Federal rules set up well for comparison. There is a nice collection of similarities, including the numbering, offset by significant and meaningful distinctions – distinctions sometimes hidden in innocuous text. This made the comparison project interesting and valuable, while keeping it from becoming endless and unmanageable. Along the way, I found Virginia rules that were better crafted than federal analogues, and vice versa, as well as areas of Virginia law crying out for interpretation and clarification. I also stumbled upon some rules where the codification eagerly embraced federal language, but in doing so appears to have deviated from the pre-codification case law, creating uncertainty about the rule now in force. I will try to illustrate these points with specific examples in the coming weeks. For those who cannot wait, a preview is available on SSRN at this link.
Introduction: The Virginia and Federal Rules of Evidence
Conclusion: The Virginia and Federal Rules of Evidence