14.11 Article Viii—hearsay

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

14.11 ARTICLE VIII—HEARSAY

14.1101 Index.

2:801. Definitions

2:802. Hearsay Rule

2:803. Hearsay Exceptions Applicable Regardless of Availability of Declarant ⁵⁷

2:803.1. Statements by Child Describing Acts Relating to Offense Against Children ⁵⁸

2:804. Hearsay Exceptions Applicable Where the Declarant is Unavailable ⁵⁹

2:805. Hearsay Within Hearsay

2:806. Attacking and Supporting Credibility of Hearsay Declarant

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14.1102 Comments.

A. In General. The Virginia Rules of Evidence distill the many recognized hearsay exceptions in Virginia into twenty-nine numbered hearsay exceptions, most of which are of common-law origin.

In criminal cases the law of the Confrontation Clause is implicated in many hearsay contexts, but those principles are not addressed in the rules of evidence. The Guide to the Rules of Evidence in Virginia has a short summary of the governing principles, and the Friend & Sinclair treatise ⁶⁰ devote lengthy sections to the Confrontation issues involving hearsay, evidence of prior out-of-court statements, laboratory reports, and other forms of evidence as these doctrines apply in criminal cases.

As in other areas of evidence law, the rules on hearsay exceptions are presented at a very general level. Thus, for example, the Deadman's Act provision set forth as Rule 2:804(b)(5) reprints statutory concepts without elaboration. Recourse to the huge body of case law (over ninety decisions from our Supreme Court in the past century) is necessary in order to apply the doctrine in particular cases, particularly on the issue of "corroboration" which has varying standards based upon the nature of the relationships between decedent, survivor, and witness.

The rules have attempted to break down hearsay to its most elemental parts.

B. Rule 2:801. Rule 2:801 provides the applicable definitions:

1.	A "statement" is (i) an oral or written assertion or (ii) nonverbal conduct of a person, if it is intended as an assertion.
2.	A "declarant" is a person who makes a statement.
3.	"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

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4.	"Prior statements." A prior statement (whether under oath or not) is hearsay if offered in evidence to prove the truth of the matters it asserts, but may be received in evidence for all purposes if it is admissible under any hearsay exception in Rule 2:803 or 2:804. In addition, if not excluded under another rule of evidence or a statute, a prior hearsay statement may also be admitted as follows:
	(a)	"Prior inconsistent statements." A prior statement inconsistent with the hearing testimony of the witness is admissible for

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