Evidence - § 7-7 - § 7-16

  § 7-7.   Privilege

  (A)       Self Incrimination

2014---Davis v. Davis, Norfolk Cir. Ct., No. 13-796-01 (no link available)
After Wife’s alleged paramour invoked his privilege against self-incrimination at deposition, Husband moved the trial court to compel the paramour to answer questions regarding his alleged sexual relations with Wife. The paramour argued that if compelled to answer, he feared prosecution for fornication, prostitution, or consensual sodomy. The trial court held that it would not decree a blanket denial of the paramour’s privilege when exposure to prosecution may depend upon multiple unknown circumstances. “Although prosecutions for fornication and consensual sodomy are now uncommon, the discretion of an unknown assistant Commonwealth’s attorney is a poor guarantee of the liberty of the citizen . . . .” Accordingly, the trial court ordered the alleged paramour to answer questions regarding coitus with Wife more than one year before the resumption of the deposition, after which the statute of limitations on prosecutions for fornication will have run.

2001---Travis v. Finley, 36 Va. App. 189 
Pursuant to Va. Code §8.01-223.1, a party’s exercise of her right to not incriminate herself shall not be used against her.

  (B).   Attorney – Client

2000---Steinberg v. Steinberg, Va. Ct. of Appeals, Unpublished, No. 0525-00-2
Typically, the attorney-client privilege does not extend to billing records and expense reports. However, correspondence, bills, ledgers, statements, and time records which also reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law, fall within the privilege.

  (C)       Spousal

1985---Church v. Commonwealth, 230 Va. 208
Trial court did not err in allowing defendant’s former wife to testify against him. The privilege of an accused to prevent his spouse from testifying against him is determined at the time of trial and depends upon the couple being validly married at the time.

Though an accused may prevent his spouse from testifying against him only while he/she is lawfully married to that spouse, the privilege preventing the spouse from testifying to confidential communications made by the accused during the marriage survives the dissolution of the marriage and applies, if invoked, regardless of whether the spouse remains lawfully married to the accused.

  § 7-8.   Prior Acts

  § 7-9.   Psychological Evidence

2011--- Harris v. Harris, Va. Ct. of Appeals, Unpublished, No. 2317-09-1
Trial court erred in excluding from evidence in a custody appeal psychological evaluations of the children, based solely on the fact that the evaluations had previously been ordered sealed by the juvenile court. The trial court’s only indication regarding the refusal to admit the evaluations was that the juvenile court “had a reason for sealing them” and that the trial court “would not disturb that ruling.” If the trial court was concerned about the need for the evaluations to remain sealed and inaccessible to the parties, the court should have simply reviewed the evaluations in camera and then ordered them resealed. The mere fact that the juvenile court had ordered them sealed was no reason for the trial court to ignore relevant evidence as it sought to determine the children’s best interests.

(DICTA) Although the evaluations were over one-year old at the time of trial, that fact does not necessarily mean that they were irrelevant to a determination of the children’s best interests. Though mother raised this objection to their entry and use in evidence, the trial court did not cite the age of the evaluations in its refusal to admit them.

2007---Bullano v. Bullano, 2007 Va. App. Unpublished, 31 
Trial court did not err in admitting testimony of a therapist over Husband’s
objection that it contained privileged information from him obtained during the course of marriage counseling.  The trial court correctly determined that because it was required to consider the physical and mental condition of the parties in determining spousal support and equitable distribution under Va. Code §20-107.1  and Va. Code §20-107.3, the exception to Va. Code §8.01-400.2  permitted the admissibility of otherwise privileged communications.  Moreover, the trial court could correctly conclude that the therapist, a licensed professional counselor and licensed marriage and family therapist in practice for twenty-three years, was competent to render an opinion as to the diagnosis and treatment of depression within the limits of her license and qualifications.

2007---Shoemaker v. Karau, 2007 Va. App. Unpublished, 126
Trial court did not err in excluding the testimony of Mother’s individual therapist, the parties’ communications therapist, and the child’s therapist during a child custody proceeding.  Mother refused to give written consent to have any of the therapists testify.  Pursuant to Rice, 2006 Va. App. 588, Va. Code §20.124.3:1  requires the exclusion of all testimony adverse to the position of the non-consenting parent.  Additionally, trial court did not err in allowing Mother to testify that, in Mother’s opinion – not the child’s therapists’ opinion, the child’s anxiety was decreasing.  Father could have offered his own opinion testimony about the child’s anxiety level and what he personally had observed about the child’s anxiety.

2006---Rice v. Rice,  2006 Va. App. Unpublished, 588
Trial court did not err in not allowing testimony of therapist in child visitation proceeding pursuant to Va. Code §20-124.3(B), which states that a mental health provider “may not be required to testify on behalf of or against a parent or any of the parent’s adult relatives without the advance written consent of the parent.”

2005---Schwartz v. Schwartz, 46 Va. App. 145
It was a reversible error for trial court to admit testimony about Mother from children’s therapist without her consent in violation of Va. Code §20-124.3:1.

1980---Spruill v. Commonwealth, 221 Va. 475 (1980)
A medical opinion based on a "possibility" is irrelevant, purely speculative and, hence, inadmissible. In order for such testimony to become relevant, it must be brought out of the realm of speculation and into the realm of reasonable probability; the law in this area deals in "probabilities" and not "possibilities."

  § 7-10. Relevance

2015--- Grant v. Quigley, Va. Ct. of Appeals, Unpublished No. 0999-14-4
The trial court did not err in refusing to allow Father to cross-examine Mother’s expert witness about Father’s willingness to undergo a polygraph examination. Under well-established precedent, polygraph examinations are so thoroughly unreliable as to be of no proper evidentiary use.

2012---Jaouni v. Salah, Va. Ct. of Appeals, Unpublished, No. 0168-11-4
The trial court did not err in admitting into evidence a video offered by father which depicted the parties’ child playing with other children and interacting with the father, despite mother’s objection that the videotape was not relevant to the specific allegations of abuse at issue. The test establishing relevance is not whether the proposed evidence conclusively proves a fact, but whether it has any tendency to establish a fact at issue. Father testified that he was a loving father, who would not abuse his daughter; that the child’s bruises resulted from playing with other children; and that the child’s negative reports about his actions contrasted with the child’s affectionate relationship and attitude towards him. The video, though not necessarily conclusive, corroborated that same evidence presented by father, and was thus relevant.

2009---Serdah v. Serdah,Va. Ct. of Appeals, Unpublished, No. 0918-09-3
Trial court did not err in admitting as relevant the complaint father had filed against mother and DSS in federal court alleging interference in his relationship with his child.  The portions of that complaint alleging attempts by mother to interfere in his relationship with the child were relevant for purposes of viewing representations made by father pertaining to the relationship and father and mother’s ability to deal with one another on child-related matters, and thus went toward the factors of Virginia Code §20-124.3, namely, the “ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.”   

2007---John Crane, Inc. v. Jones, 274 Va. 581
Evidence is relevant if it has any logical tendency to prove an issue in a case. Relevant evidence may be excluded only if the prejudicial effect of the evidence outweighs its probative value.

Trial court did not err in allowing testimony of the Defendant company’s custodian of records as to the improper discovery verification procedure used by the company, despite the fact that the company conceded that its discovery responses were improper. The custodian’s testimony tended to undermine the credibility of the company’s assertion that it employed proper procedures with regard to researching the potential dangers imposed by its products, which was a central issue in the case.

2006---Surles v. Mayer,  48 Va. App. 146
Trial court did not err in allowing evidence of that Father, while living with Mother, engaged in affairs with other women as such evidence was relevant to the daughter’s best interests and well-being.

  § 7-11. Burden of Proof

  (A)       Preponderance

  (B)       Clear and Convincing

2009---Jones v. Jones, 2009 Va. App. Unpublished, 195
The term “clear and convincing evidence” is defined as “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.  It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” (citing Fred C. Walker Agency, Inc. v. Lucas, 215 Va. 535 (1975)). 

  (C) Beyond a Reasonable doubt

  (D) De Novo

2008---Alexander v. Flowers, 51 Va. App. 404
Once a trial de novo commences in the circuit court, the district court judgment is annulled, and is not thereafter available for any purpose. 

The Circuit Court erred when, while on de novo appeal from the juvenile court, it considered the transcript of the juvenile court hearing and stated that, unless the mother presented new or different evidence than was presented in juvenile court, the circuit court’s decision would be the same.  Requiring mother to present new or different evidence at the de novo hearing improperly shifted the burden of production and persuasion to the mother and constituted clear error.  Circuit court committed additional error by threatening mother with punitive attorney’s fees unless she had new evidence.  Those actions together denied mother of her right to a de novo appeal. 

  (E) Prima Facie case

2014---Cavallo v. Cavallo, Va. Ct. of Appeals, Unpublished, No. 0981-13-4.
BLL: Wife had the burden to prove her right to 50% of the net increase in value of Husband’s businesses and to provide the court with a reasonable basis to calculate the amount of the award. Because Wife presented evidence only as to the businesses’ assets while disregarding the businesses’ liabilities, she failed as a matter of law to present a prima facie case to support her claim that husband’s businesses increased in value.

  § 7-12. Witnesses

  (A)       Competency

1995---Haase v. Haase, 20 Va. App. 671 
Two children, twelve and eight, were of sufficient intelligence, understanding and experience to express their views concerning their custody.

When an in-camera interview is conducted by the judicial officer alone over the objection of a parent, a transcript of the evidence received must be prepared and made available upon request of the parents.

  (B)       Appearance at Hearing

2010---McCauley v. Hoover, Va. Ct. of Appeals, Unpublished, No. 2587-09-3
The trial court did not err in denying father’s request to be transported from his place of incarceration to attend a hearing on his motion regarding visitation with his children. Va. Code §8.01- 410 grants the court the discretion as to whether to order an incarcerated party or witness to a civil action transported to court for purposes of testifying. The court found that testimony by father’s guardian ad litem was sufficient to rule on the issue.

2000---Steinberg v. Steinberg, Va. Ct. of Appeals, Unpublished, No. 0525-00-2
Typically, the attorney-client privilege does not extend to billing records and expense reports. However, correspondence, bills, ledgers, statements, and time records which also reveal the motive of the client in seeking representation, litigation strategy, or the specific nature of the services provided, such as researching particular areas of law, fall within the privilege.

  (C)       Private Detectives

1936--- Martin v. Martin , 166 Va. 109
Evidence of private detectives should be examined with utmost care. Uncorroborated it is seldom sufficient to sustain any judgment. The private detective is a “most dangerous instrument.”

  (D)       Witness Credibility

2015 --- Gregory v. Gregory, Va. Ct. of Appeals, Unpublished, No. 1367-14-4
The trial court erred in awarding Wife spousal support based on evidence that it expressly found to be lacking credibility. Where the trial court made a clear and unmistakable negative credibility determination as to Wife’s evidence and testimony in support of her need for spousal support, it was error for the trial court to subsequently discount its own credibility determination and base its finding of Wife’s income on said evidence. The mere fact that the incredible evidence was “the only evidence [the court] had” was not sufficient to permit the court to base a finding on it.

2014---LaBrie v. LaBrie, Va. Ct. of Appeals, Unpublished, No. 1894-14-2
The trier of fact ascertains a witness’ credibility, determines the weight to be given to their testimony, and has the discretion to accept or reject any of the witness’ testimony.

2013---Stegall v. Stegall, Va. Ct. of Appeals, Unpublished, No. 1283-13-3
The trial court did not err in accepting the testimony of wife’s expert regarding the valuation of husband’s business for purposes of equitable distribution. It is firmly established that the trier of fact ascertains a witness’ credibility, determines the weight to be given to their testimony and has the discretion to accept or reject the testimony of any witness. The trial court did not err in accepting the testimony of wife’s expert, which it found to be “better reasoned and more persuasive.”

  § 7-13. Affidavits

2016--- Laveist v. Laveist, Va. Ct. of Appeals, Unpublished, No. 1845-15-1
The trial court did not err in allowing Wife to prove the jurisdictional grounds for divorce with affidavits she submitted pursuant to Code of Virginia § 20-106. Although Husband filed a counterclaim and contested the grounds for divorce, the trial court ultimately dismissed Husband’s counterclaim. Thus, the case reverted back to Wife’s original uncontested complaint for divorce, which was supported by her and her witness’ affidavits. Moreover, as authorized by Code § 20-106, the trial court expressly granted Wife leave to proceed upon her previously-filed affidavits after it dismissed Husband’s counterclaim.

2013---Cruz v. Cruz, 62 Va. App. 31
Wife was not entitled to rely on an affidavit as evidence under Code of Virginia §20-106(A)(iii) where Husband made an appearance in the case and contested the divorce. Husband’s motion to strike was granted.

  § 7-14. Fault

2013---Milam v. Milam, Va. Ct. of Appeals, Rec. No. 0837-12-4 (UO)
Trial court did not err in sustaining an objection by Wife’s counsel to question by Husband’s counsel about Wife’s sexual history where Husband’s counsel lacked a good-faith basis for asking the question.

1985---Wallace v. Wallace, Va. Ct. of Appeals, No. 0055-85.
The trial court did not err in denying Husband’s motion to require Wife and her alleged lover to answer questions regarding adultery where the record amply supported that it was Husband’s fault and misconduct that caused the termination of the marriage.

  § 7-15. Unfairly Prejudicial

2015---Lee v. Spoden, 290 Va. App. 235
In Wife’s breach of contract action against Husband and his company, the trial court erred in excluding evidence of its ruling from a prior contempt proceeding on the basis that said evidence was unfairly prejudicial. Virginia Rule of Evidence 2:403(a)(i) requires the court to apply a balancing test to determine whether the probative value of the evidence would be substantially outweighed by the danger of unfair prejudice. All probative direct evidence is generally prejudicial to the opposing party, and so the mere fact that evidence is highly prejudicial to a party’s claim or defense is not a proper consideration in Rule 2:403(a)(i)’s balancing test. “Unfair prejudice” refers to the tendency of the evidence to inflame the passions of the trier of fact or to invite decision based on a factor unrelated to the elements of the claims or defenses in the pending case. Here, where Wife alleged that Husband acted in bad faith by selling company property (after the contempt proceeding) in violation of the parties’ divorce settlement agreement, the ruling from the prior contempt proceeding that Husband owned the property and had a right to sell it, though prejudicial to Wife’s claims, was not unfairly prejudicial.

  § 7-16. Best Evidence Rule

1996---Allocca v. Alloca, 23 Va. App. 571
The trial court did not err in admitting a photocopy of the parties’ agreement into evidence despite the availability of an original. The best evidence rule requires that, to prove the contents of a document, the original must be produced unless it is shown that the original is unavailable, in which case secondary evidence may be introduced. However, if a copy can properly be treated as a “duplicate original,” the copy is admissible without regard to the availability of the original. Proper circumstances exist to treat a photocopy as the duplicate original when the accuracy of a photocopy is not disputed. Here, although Wife’s counsel requested Husband to introduce the original agreement into evidence, Wife did not challenge the accuracy of the photocopy. Moreover, in her response to Husband’s request for admissions, Wife admitted that the photocopy was a true copy of the agreement.

  § 7-17. Attorney’s Fees

2015---Youngson v. Brautigam, Va. Ct. of Appeals, Unpublished, No. 2204-14-1
A trial court may award attorney’s fees based upon an attorney’s fee affidavit and proffers to the court.


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