In Virginia, can a plaintiff in a personal injury lawsuit put on evidence of a statement made by an unavailable witness, which was against the penal interest of the unavailable witness?

The below information was written by our personal injury lawyers in Virginia Beach.

Yes. In Virginia, statements made by a witness who is unavailable for trial, which tend to incriminate the person who made the statement, are admissible under the statement against interest exception to the hearsay rule. For a discussion of the hearsay rule in Virginia, click here. According to the Virginia Rules of Evidence, a statement falls under the statement against interest exception to the hearsay rule if the person making the statement is dead or otherwise unavailable as a witness and the statement meets the following requirements:

Statement Against Interest. (A) A statement which the declarant knew at the time of its making to be contrary to the declarant’s pecuniary or proprietary interest, or to tend to subject the declarant to civil liability. (B) A statement which the declarant knew at the time of its making would tend to subject the declarant to criminal liability, if the statement is shown to be reliable.

The statement against interest exception to the hearsay rule is broad enough to encompass statements made against the declarant’s penal interest, meaning statements that would tend to subject the declarant to criminal liability, but also includes statements against the financial interest of the declarant or statements that would tend to subject the declarant to civil liability. Turning our attention back to the question of statements made by unavailable witnesses which are against their penal interest, Virginia law allows such statements to be introduced into evidence as an exception to the hearsay rule, because such statements are considered to be particularly reliable. Writing on the rationale for allowing statements against penal interest as an exception to the hearsay rule, the Virginia Supreme Court has said:

This exception to the hearsay rule allows out-of-court statements that tend to incriminate a declarant to be received in evidence upon a showing that the declaration is reliable and that the declarant is presently unavailable. Ellison v. Commonwealth, 219 Va. 404, 408, 247 S.E.2d 685, 688 (1978). Underlying this exception is the presumption that individuals have a strong interest in protecting themselves and thus do not often make statements that expose themselves to criminal liability unless those statements are true. See Newberry v. Commonwealth, 191 Va. 445, 461, 61 S.E.2d 318, 326 (1950); Hines v. Commonwealth, 136 Va. 728, 743–44, 117 S.E. 843, 847 (1923). When the declarant has made an incriminating statement that is contrary to his self-interest, this “element of self-interest” functions as “a reasonably safe substitute for the oath and cross-examination as a guarantee of truth.” Newberry, 191 Va. at 461, 61 S.E.2d at 326 (citing Hines, 136 Va. at 744, 117 S.E. at 847).

One situation where a plaintiff in a personal injury case might put on evidence of a statement against penal interest made by an unavailable witness would be a scenario in which a witness made a statement at the scene of a car accident that he and the defendant used illegal drugs earlier in the day. If the person making this hypothetical statement was the passenger in the vehicle operated by the defendant driver, it is possible that the plaintiff would be permitted to testify regarding the unavailable witness’s statement against the penal interest, unless the statement is barred by some other rule of evidence.

Questions regarding the hearsay rule and exceptions to the hearsay rule such as statements against interest are specific to the individual personal injury case, and we encourage you to contact one of our personal injury lawyers in Virginia Beach.   We can advise the prospective client as to what testimony a witness can give at trial and what testimony will be prohibited on the basis of hearsay or some other rule of evidence. As in all personal injury cases, an experienced personal injury lawyer can also advise the injured person as to the value of the injury claim, can guide the injured person through the process of making a claim with the applicable insurance company or companies, and can represent the injured person in the litigation of the personal injury claim, if a personal injury lawsuit becomes necessary.

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