Law Firm – Assembly approves Rules of Evidence

Assembly approves Rules of Evidence

By Peter Vieth
Published: March 14, 2012

Tags: , Charlottesville Law Firm, ,
After what one sponsor termed a “roller coaster” ride in the final days of the session, the 2012 General Assembly approved the creation of a unified set of evidence rules for Virginia courts.

Approval of an official Rules of Evidence for Virginia follows about 18 years of discussion and planning. Enactment of the evidence rules leaves Massachusetts as the only state without an official code of evidence.

“It’s a pretty monumental accomplishment,” said Del. G. Manoli Loupassi, R-Richmond, one of the sponsors of the evidence bills. The bar will benefit, he said, by having an evidence code readily accessible “for a clear, cogent statement of what the rule is.”

The Rules of Evidence would take effect July 1, assuming Gov. Bob McDonnell signs the measure.

In the final days of the session, however, it looked as though the proposal might fail. Intensive lobbying by legislators and advocates for bar groups and the judiciary at last overcame concerns about the Assembly’s role in future rule changes.

“It was a roller coaster in the last two days of the session to get it passed,” said Sen. John S. Edwards, D-Roanoke, another of the sponsors of the evidence bills.

Even after the successful lobbying effort on the eve of adjournment, four Senators argued “vehemently” against passing the Rules of Evidence, Edwards said.

Sen. Ryan T. McDougle, R-Mechanicsville, argued the Assembly was giving up its authority to consolidate the rules in one place and to initiate changes, especially for sensitive issues like privilege.

McDougle noted federal rules on privilege cannot be changed without an act of Congress. He sought the same authority for Virginia: “to not allow the rules to be changed without an affirmative vote of the legislature prior to that change, for specific things like privilege.”

Other dissenters had similar objections. Sen. J. Chapman Petersen, D-Fairfax, argued the Assembly should have a hand in the origination of evidence rules. “In my opinion, the laws of evidence – especially those involving privileges – are substantive and should be approved by elected representatives,” he said. “The legislative ‘veto power’ is meaningless, since we already have the power to legislate on matters in the state court system.”

Edwards said he and other evidence rules advocates pointed out the Supreme Court has broad rulemaking authority already, subject to Assembly oversight. They argued the procedure for evidence rules broke no new ground.

As it passed the legislature, the evidence code gives the Supreme Court the authority to adopt rule changes subject to modification by the General Assembly. Adjustments were made to the timing of rules changes to comport with the legislative calendar.

Statutes that parallel the rules of evidence are left intact in the state code, with citations to be included in the rules.

“It does preserve legislative oversight, but only when the General Assembly decides to pass legislation to annul or change a rule,” Edwards said. “I think the final result is one that the Supreme Court and the bar will be pleased with,” he said, adding “The Supreme Court will not have to ask permission of the General Assembly to change its rules.”

“I think it will work,” Loupassi said. “It maintains a good balance for us.”

Based on past history, Loupassi said, he doesn’t expect many proposals for changes in the evidence rules.

For supporters, the last-minute drama was unexpected. “It looked like it was just sailing on through,” Loupassi said. Opposition emerged in the House two days before the end of the session, and Loupassi said he met with McDougle and Del. David Albo, R-Fairfax, chair of the House Courts committee, to hear their concerns. He came away worried the opposition was “going to unravel everything.”

After a conference committee cleared up the concerns of most House opponents, trouble emerged on the other side of the Capital. The day before adjournment, the Senate voted down the conference report 11-to-29.

That evening and the next morning, Loupassi, Edwards and lobbyists for the Virginia Bar Association and other entities went to work on the doubters, with remarkable effectiveness. The bill produced by a second conference committee cleared the House 93-to-4 and passed the Senate 36-to-4. Twenty-five Senators had changed their votes.

One of the VBA’s lobbyists, H. Lane Kneedler of Richmond, credited Sen. Tommy Norment, R-Williamsburg, for a persuasive Senate floor speech. Norment analogized legal rules to business regulations, arguing against the need for affirmative legislative action. “He spoke directly to the non-lawyers,” Kneedler said. “He was very helpful.”

Albo was among the early doubters who ended up supporting the final version.

The VBA had strong horses with a lobbying team from Reed Smith, but supporters also credit advocacy from Supreme Court representatives and other bar groups, including the Virginia Trial Lawyers Association and the Virginia Association of Defense Attorneys.

“The Virginia Rules of Evidence further the VBA’s mission of improving the law and the administration of justice, and should be of tremendous benefit to lawyers and judges in the commonwealth,” said VBA President Hugh M. Fain III.

Please contact us if you have legal questions.

Tucker Griffin Barnes P.C.
Charlottesville, VA

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