As you’ve likely heard, the Supreme Court of Virginia recently approved rules of evidence for the Commonwealth. The rules are modeled on the set drafted by the Boyd-Graves conference and published by Virginia CLE. They track and codify the existing common-law rules of evidence.

(You’ll note that the VLW story I linked to above mentions submitting the rules to the Code Commission and getting approval from the General Assembly. More on that in a second.)

I was thrilled to hear the news. Our lack of rules of evidence is one of my well-documented pet peeves.

In fact, I’d just done a post complaing about that very topic. Virginia and Massachusetts are the only two states (technically, commonwealths) without rules of evidence. That’s bad company. Massachusetts is a very silly state.

So, logically, I was about to crack open a nice box of wine and write a follow-up post taking credit for the new rules. After all, while they may have been in the works for a while, it was clearly the force of my rhetoric that put this thing over the top.

Then Chief Justice Kinser stopped by Roanoke last Tuesday.

Now, I defer to no one in my admiration for the Chief Justice. But sometimes she scares me. Usually, it’s when she’s asking me questions. On Tuesday, she did something even more fightening: She explained a little about the rules adoption process going forward.

In my simple-minded view of the world, I guess I’d figured that the Boyd-Graves conference would propose rules, the SCV would approve them, and all would be good. (This is what happens when you only read the VLW headline, and not the entire story.) After all, these seem like the folks best situated to tell us what the law of evidence in Virginia says. Please stop me if, at any point, I say something that isn’t blindingly self-evident.

So imagine my surprise when the Chief Justice explained that the next step in the process involves sending the rules to the General Assembly.


Let’s set politics aside for a minute. Many rules of evidence don’t make much sense on their own; you need context to understand them. A lot of context. (I’m looking at you, hearsay exceptions.)

There’s something fundamentally horrifying about the idea of people, many of whom who have no background in law–and some of whom have a professional hostility to lawyers–sitting down to play with the rules of evidence. I mean, how much sense the limits on character and habit evidence make to you before you went to law school?

And half the time when we try to improve on the common law, we wind up screwing the whole thing up. We get things like the dead man’s statute. Whether or not that statute makes policy sense as interpreted, it’s completely incomprehensible as drafted.

Worse still is the potential for politicizing some of these rules. Like, how about we stick it to the greedy plaintiff’s bar by saying that the dead man’s statute doesn’t apply to doctors, or tweaking the hearsay rule to help corporate defendants? We could make a real mess of oh, say, about 200 years of jurisprudence by horse trading rules and exceptions. That’s not worth it.

So to those of you in the Boyd-Graves conference and on the SCV, hearty congrats on a job well done.

And to everybody else, please ask your friendly neighborhood legislators to pass the rules of evidence as presented, and as a package.

No rules are bad. But bad rules are worse.