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Rules on Prior Witness Statements – Effective July 1, 2015

August 5, 2020

The Supreme Court of Virginia has clarified its view of the proper way to use prior witness statements at trial.  Effective July 1, 2015, the new language of Rule 2:801 adds to the definition of “hearsay” the term “Prior statements.”  The new definition provides:

 (d) Prior statements. When a party or non-party witness testifies either live or by deposition, 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 the statement is admissible under any hearsay exception provided in Rules 2:803 (Hearsay Exceptions Regardless of Availability) or 2:804 (Hearsay Exceptions-Declarant Unavailable). In addition, if not excluded under another Rule of Evidence or a statute, a prior hearsay statement may also be admitted as follows:

(1) Prior inconsistent statements. A prior statement that is inconsistent with the hearing testimony of the witness is admissible for impeachment of the witness’s credibility when offered in compliance with Rule 2:613.

(2) Prior consistent statements. A prior statement that is consistent with the hearing testimony of the witness is admissible for purposes of rehabilitating the witness’s credibility, but only if  (A) the witness has been impeached using a prior inconsistent statement as provided in Rule 2:607, Rule 2:613 and/or subpart (d)(l) of this Rule 801, or (B) (i) the witness has been impeached based on alleged improper influence,  or a motive to falsify testimony, such as bias, interest, corruption or relationship to a party or a cause, or by an express or implied charge that the in-court testimony is a recent fabrication; and (ii) the proponent of the prior statement shows that it was made before any litigation motive arose for the witness to make a false statement.

The new rule’s purpose is to align the rule with the case law in the area.  It simply provides clearer, more concise guidance on this issue than could previously only be found in case law.