Tuesday, May 5, 2015
This is the last in a series of posts on my recently completed book project comparing the now-codified Virginia Rules of Evidence and the venerable Federal Rules of Evidence.
Here is the lineup of posts:
- Introduction: The Virginia and Federal Rules of Evidence
- Post 1: The Wrong Side of History: Prior False Accusations in Sexual Assault Cases
- Post 2: Virginia’s “Trap for the Unwary”: Loopholes in State Evidence Rules Protecting Settlement Discussions
- Post 3: Evidence Codification Intrigue in Virginia: A New(?) Hearsay Exception for Statements Made for Medical Treatment
- Conclusion: The Virginia and Federal Rules of Evidence
For those keeping score at home, here are the takeaways from the series:
(1) Virginia's Facial Similarity to the Federal Rules Masks Significant Differences
The codification of the Virginia rules and adoption of the federal numbering (and often federal-ish language) is a welcome development for the Commonwealth. But despite facial similarity, the Virginia rules regularly deviate from the federal rules, often in important ways. I flagged one deviation in Post 2 (settlement discussions), but there are many more. They range from the refreshing to the mundane to the maddening, but all are worth exploring.
In some areas like privilege, the Virginia rules take on questions that the federal rules sidestep. In other areas (e.g., Rule 106), the Virginia rules clarify questions that split the feds. And some rules, like the evidentiary morass that is Virginia Rule 2:607 (Impeachment of Witnesses), illustrate the wisdom of simpler federal rules.
(2) The Codified Rule Is Not Necessarily the Virginia Rule
The Codifiers were only authorized to codify (not alter) pre-codification case law. But the codifiers occasionally strayed from Virginia case law. The Virginia courts have not yet taken on an instance of codification inconsistency, perhaps because litigants have not brought any to their attention. I flagged a big one in Post 3, a seemingly new hearsay exception. When these deviations are inevitably litigated, will Virginia courts accept the codification or return to pre-codification case law? It’s a cliffhanger!
(3) A Book that Chronicled All This Would Be Very Useful
Yes, indeed. That’s what I thought when I first arrived in Virginia to teach Evidence three years ago. Turns out to get one of these books, I had to write it myself. You on the other hand can grab a copy for less than $20. That’s right, one fifth the cost of viewing the Mayweather-Pacquiao fight without all the angst.