Chapter 1 - 1.1 Overview

• Jurisdiction: Virginia

1.1 OVERVIEW

1.101 Virginia Practice. The Virginia evidence rules restate the existing law of evidence in Virginia.¹ Leading cases are cited in the notes to each section, and where the General Assembly has covered a topic by statute, the rules simply incorporate the governing provision. The admissibility of evidence in Virginia will continue to be governed by case law, statutes, and the rules of court. The Virginia Supreme Court has said "[t]he general rule is that a litigant is entitled to introduce all competent, material, and relevant evidence which tends to prove or disprove any material issue raised."² Relevant evidence is generally admissible unless a specific rule requires its exclusion.³ It is well established in Virginia law that evidence is admissible if it can be admitted for any purpose, such as those recognized by the exceptions to the hearsay rule.⁴

Counsel should try cases with an awareness of the possibility of appellate review and a view toward preserving all potential issues on the record, even those that effectively require a reasonable extension of existing law.⁵ Counsel has a duty to ensure that the record will allow an appellate court to rule on any assignments of error because the trial court's ruling is assumed to be correct.⁶

Some simple principles to keep in mind in terms of objections are:

• Be quick;

• Be specific;

• Be persistent;

• Be courteous;

• Save the objections for the important stuff; and

• Know the law.

1.102 Purpose. The most important purposes of objections are:

• To inform the court and counsel that there is a potential problem with the evidence that is being sought or offered; and

• To propose a mechanism by which the problem can be resolved if in fact it is one where resolution is possible.

The objection must be specific so that opposing counsel can correct the problem if indeed it is correctable. Subsidiary reasons for making objections include the following: (i) to preserve the record; (ii) to limit the use of evidence to a specific purpose; (iii) to throw opposing counsel off balance; (iv) to force opposing counsel to tailor the evidence to the objecting party's advantage; or (v) to change the opposing party's litigation tactics. A proper and timely objection may compel opposing counsel to devise, mid-trial, an alternative method of proof for an excluded fact or exhibit that is critical to the case.

1.103 Foregoing Objections. Sometimes the best objection is simply no objection at all. Even when counsel has a valid objection that the court should sustain, it may be tactically wise to forego the objection when it might alienate the jury or further highlight harmful evidence; if the admission of the evidence threatens only negligible harm; or the evidence opens the door for you to an issue that previously was closed. The matter subject to objection may sometimes be a positive piece of evidence. For example, opposing counsel may accidentally elicit some objectionable testimony such as a hearsay statement that is harmful to his or her case. Certainly, there is no reason to make an objection, even if technically correct, to cure this. Since one cannot object to one's own evidence, it cannot be cured by the party who caused its introduction.⁷

1.104 Making an Objection. The objection should be made contemporaneously with the offending question, testimony, or exhibit.⁸ The objection should be specific and timely.⁹ To make an objection, the proper procedure is for counsel to simply state the word "objection" and then to summarize in one or two words the basis. If there are multiple reasons for the objection, all should be stated so that they can be preserved. Virginia law requires that contemporaneous objection be made with reasonable certainty to evidence or rulings.¹⁰ As to evidence excluded, the non-objecting party can make the substance of the evidence known to the court by proffer.¹¹ Except in rare circumstances, Rules 5:25 and 5A:18 of the Rules of the Supreme Court of Virginia restrict appellate review to claims of error that are the subject of proper and timely objections.¹² The Virginia Supreme Court also recognizes an exception that allows affirmance in some circumstances even if counsel has not presented the argument at trial under the "right result for the wrong reason" doctrine as long as all of the necessary evidence was presented at trial.¹³

A. Stating the Grounds. An attorney should always make opposing counsel state the grounds for the objection. If the judge has ruled without this being done, counsel should interject by saying "I'm sorry, your Honor, I didn't hear the reason." The record is incomplete without the grounds being stated.

Experience in trial increases the practitioner's ability to recognize and anticipate objectionable matters. Nevertheless, objections are not always matters of absolute certainty. An attorney should not hesitate to make an objection that may not be "correct" if the objection is arguably supported by the law and the objectionable matter could be harmful to his or her client. The court has discretion to resolve the competing values that emanate from an objection. For instance, the court might exclude evidence that is otherwise relevant because it is prejudicial or confusing to the jury.¹⁴ sometimes an objection alone is not sufficient but must be accompanied by a request for remedial response by the court.¹⁵

Rules 5A:18 and 5:25 require that an objection be stated with specificity at trial because a party will not be allowed to state one or more grounds of objection to evidence at trial and then attempt to rely upon other grounds in the appellate court; a party is regarded as having waived the objections that were not stated.¹⁶ When an assignment of error has left an independent basis that supports a challenged ruling uncontested, the appellant cannot obtain a reversal on that ground.¹⁷

B. Timeliness. The objection must be contemporaneous with the offering of the evidence. In a medical malpractice case if the objection is to the expert not testifying to a reasonable degree of medical probability, then that objection must be made when that evidence is offered and not as part of a motion to strike.¹⁸ In other instances, however, the defect in the expert's testimony may not be apparent until the testimony is completed.

In general, objections as to admissibility must be made when the evidence is offered. In Carter v. Commonwealth,¹⁹ Carter waited until the jury had already retired to recall a witness he considered hostile and elicit evidence for a proffer. The testimony given then contradicted what the witness had just said during the trial, but Carter waited until after the jury had returned a guilty verdict to move for a new trial. The Virginia Supreme Court held that the motion for a mistrial based on the witness's false testimony had been waived because it came after the verdict, too late for the court to address the error.

Objections as to the sufficiency of the evidence, rather than to the admissibility, may be made as part of a motion to strike when it is possible to evaluate whether the totality of the opposing party's evidence is adequate.²⁰

C. No Time to Object. If the witness does not give the attorney time to object, it is proper to ask the court to instruct the witness to pause for a moment before answering the question so that counsel has the...