Rule 2:802. Hearsay Rule

LibraryA Guide to the Rules of Evidence in Virginia (Virginia CLE) (2021 Ed.)

Rule 2:802. HEARSAY RULE

Hearsay is not admissible except as provided by these Rules, other Rules of the Supreme Court of Virginia, or by Virginia statutes or case law.

NOTES

This Rule of Evidence states the basic hearsay exclusionary rule, long a feature of Virginia law, and is similar to the rules of all states. Its terms contain a savings clause to preserve any existing or future statutory or case law exceptions not covered by the rules. See Decipher, Inc. v. iTRiBE, Inc., 262 Va. 588 (2001) ("Generally, the hearsay rule precludes a witness from quoting from, or summarizing the contents of, even admissible records until they have been received in evidence").

ALERT

HEARSAY AND THE CONFRONTATION CLAUSE

It is beyond the scope of the Guide to provide a treatise on the constitutional limitations upon admissible proof in criminal cases. However, because of the significant overlap in criminal cases between the law of hearsay and the Sixth Amendment's Confrontation Clause, it should be noted that a number of decisions by the Supreme Court of Virginia and the Court of Appeals of Virginia have recognized and applied the United States Supreme Court's Confrontation Clause doctrines, leading to four distinct conclusions:

Out-of-court statements that are not offered for the truth of what they say are not hearsay under Virginia law, and do not violate the Confrontation Clause principles. Hodges v. Commonwealth, 272 Va. 418 (2006) (applying Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004), and Tennessee v. Street, 471 U.S. 409 (1985)); see also Thomas v. Commonwealth, 279 Va. 131 (2010).
Use at trial in a criminal case of some out-of-court statements that might qualify as admissible under a Virginia hearsay exception will be barred under the Sixth Amendment if they are "testimonial" proof as that concept has been articulated in Crawford (announcing the "testimonial" standard); Davis v. Washington, 547 U.S. 813, 830 (2006) (two consolidated decisions addressing admissibility of 911 calls and statements made to police at a crime scene, whether during an ongoing crime scene or for purposes of apprehending a criminal thereafter); Giles v. California, 554 U.S. 353 (2008) (recognizing forfeiture of Confrontation

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rights where a defendant has acted for the purpose of preventing a witness from testifying, if absence of the witness from the trial results); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (laboratory reports and production at trial of the scientist who has performed the tests), Michigan v. Bryant, 562 U.S. 344 (2011) (statements made during "ongoing emergency" shortly
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