per se rule in Virginia

2026See Lux, 24 Va. App. at 573 (refusing to adopt a per se rule disqualifying an entire Commonwealth’s office in cases where one prosecutor has a conflict because he acted as a criminal defendant’s former counsel).

2001In Lux v. Commonwealth, 24 Va. App. 561, 574-75 , 484 S.E.2d 145, 151-52 (1997), we declined to adopt a per se rule of disqualification of an entire Commonwealth's Attorney's Office when defendant's former attorney was employed by that office.

1998In Sutherland v. Sutherland, 14 Va. App. 42, 43 , 414 S.E.2d 617, 618 (1992), this Court rejected the contention that Brown established a per se rule that cohabitation renders a parent unfit.

1998In Sutherland v. Sutherland, 14 Va. App. 42, 43 , 414 S.E.2d 617, 618 (1992), this Court rejected the contention that Brown established a per se rule that cohabitation renders a parent unfit.

2009See id. at 842, 589 S.E.2d at 488 (rejecting the application of a per se rule of prejudice and remanding “for the commission to determine if claimant met her burden to show prejudice from employer’s failure to file the [fjirst [rjeport”). *764 The common thread in our cases that address prejudice is whether the claimant was aware of his duty to file a claim in the absence of material from the commission advising of the necessity to file a timely claim.

2008Hall v. Winn-Dixie Stores, Inc., 41 Va. App. 835, 842 , 589 S.E.2d 484, 488 (2003) (rejecting the application of a per se rule of prejudice and remanding “for the commission to determine if claimant met her burden to show prejudice from employer’s failure to file the [f]irst [r]eport”).

2015See United States v. Cortez, 449 U.S. 411, 417-18 (1981).

2014See United States v. Cortez, 449 U.S. 411, 417-18 (1981).

2010Justus v. Commonwealth, 222 Va. at 673 (“We do not feel that a per se rule requiring a judge to recuse himself on retrial of a capital murder case is necessary to assure a fair trial.”); see also State v. Moore, 988 So. 2d 597, 601 (2008) (“A trial judge need not recuse himself solely on the ground that he was the 'same trial judge who had heard the case and imposed the death penalty’ in the defendant’s prior trial”) (quoting Ex parte Whisenhant, 555 So. 2d 235, 238 (Ala. 1989)).

2005See Justus v. Commonwealth, 222 Va. 667, 673 , 283 S.E.2d 905, 908 (1981). 267 Va. at 229 , 590 S.E.2d at 519 .

2006See Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 635 , 593 S.E.2d 568, 571 (2004) (noting that “a pure question of statutory interpretation” is “a matter within the core competency of the judiciary”); see also One 1968 Buick v. State, 638 N.E.2d 1313, 1316 (Ind. - 30 - Ct. App. 1994) (“A preliminary issue which we raise sua sponte is one of statutory interpretation.”); Bartus v. Dep’t of Health & Social Servs., 501 N.W.2d 419, 423 (Wisc. 1993) (holding that the Wisconsin Court of Appeals “had the authority to raise the question of statutory interpretation sua sponte,” and declining “to ad

2006See Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 635 , 593 S.E.2d 568, 571 (2004) (noting that “a pure question of statutory interpretation” is “a matter within the core competency of the judiciary”); see also One 1968 Buick v. State, 638 N.E.2d 1313, 1316 (Ind. - 30 - Ct. App. 1994) (“A preliminary issue which we raise sua sponte is one of statutory interpretation.”); Bartus v. Dep’t of Health & Social Servs., 501 N.W.2d 419, 423 (Wisc. 1993) (holding that the Wisconsin Court of Appeals “had the authority to raise the question of statutory interpretation sua sponte,” and declining “to ad

2006See Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 635 , 593 S.E.2d 568, 571 (2004) (noting that “a pure question of statutory interpretation” is “a matter within the core competency of the judiciary”); see also One 1968 Buick v. State, 638 N.E.2d 1313, 1316 (Ind. - 30 - Ct. App. 1994) (“A preliminary issue which we raise sua sponte is one of statutory interpretation.”); Bartus v. Dep’t of Health & Social Servs., 501 N.W.2d 419, 423 (Wisc. 1993) (holding that the Wisconsin Court of Appeals “had the authority to raise the question of statutory interpretation sua sponte,” and declining “to ad

2006See Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 635 , 593 S.E.2d 568, 571 (2004) (noting that “a pure question of statutory interpretation” is “a matter within the core competency of the judiciary”); see also One 1968 Buick v. State, 638 N.E.2d 1313, 1316 (Ind. - 30 - Ct. App. 1994) (“A preliminary issue which we raise sua sponte is one of statutory interpretation.”); Bartus v. Dep’t of Health & Social Servs., 501 N.W.2d 419, 423 (Wisc. 1993) (holding that the Wisconsin Court of Appeals “had the authority to raise the question of statutory interpretation sua sponte,” and declining “to ad

2006See Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 635 , 593 S.E.2d 568, 571 (2004) (noting that “a pure question of statutory interpretation” is “a matter within the core competency of the judiciary”); see also One 1968 Buick v. State, 638 N.E.2d 1313, 1316 (Ind. - 30 - Ct. App. 1994) (“A preliminary issue which we raise sua sponte is one of statutory interpretation.”); Bartus v. Dep’t of Health & Social Servs., 501 N.W.2d 419, 423 (Wisc. 1993) (holding that the Wisconsin Court of Appeals “had the authority to raise the question of statutory interpretation sua sponte,” and declining “to ad

2006See Finnerty v. Thornton Hall, Inc., 42 Va. App. 628, 635 , 593 S.E.2d 568, 571 (2004) (noting that “a pure question of statutory interpretation” is “a matter within the core competency of the judiciary”); see also One 1968 Buick v. State, 638 N.E.2d 1313, 1316 (Ind. - 30 - Ct. App. 1994) (“A preliminary issue which we raise sua sponte is one of statutory interpretation.”); Bartus v. Dep’t of Health & Social Servs., 501 N.W.2d 419, 423 (Wisc. 1993) (holding that the Wisconsin Court of Appeals “had the authority to raise the question of statutory interpretation sua sponte,” and declining “to ad

1996Further, in Calhoun v. Commonwealth, 226 Va. 256, 263 , 307 S.E.2d 896, 900 (1983), we refused to adopt a per se rule disqualifying a juror solely because the juror had been represented by the Commonwealth’s Attorney at some time in the past.

1996Further, in Calhoun v. Commonwealth, 226 Va. 256, 263 , 307 S.E.2d 896, 900 (1983), we refused to adopt a per se rule disqualifying a juror solely because the juror had been represented by the Commonwealth’s Attorney at some time in the past.

2006See e.g., Robinette, 519 U.S. at 39 (refusing to adopt a per se rule prohibiting such encounters); see also Schneckloth, 412 U.S. at 227 (refusing to require police officers to warn potential subjects of a consent search that they have the right to refuse consent in order to preserve the consensual nature of the encounter).

2000Reittinger should not be read “to eviscerate the basic principle that a consensual search can follow a legitimate detention, in light of the Supreme Court’s refusal in Ohio v. Robinette, 519 U.S. 33 (1996), to adopt a per se rule prohibiting such encounters.” Carter v. Commonwealth, No. 2445-98-2, slip op. at 5, n. 2, 2000 WL 1181121 (Va. App. Aug. 22, 2000).

1996A per se rule in Virginia has been approved only where the venireman knew of an accused’s prior conviction for the same offense, id.; stood in a near legal relationship to the victim of the accused, Gray v. Commonwealth, 226 Va. 591, 593 , 311 S.E.2d 409, 410 (1984), Jaques v. Commonwealth, 51 Va. (10 Gratt.) 690 , 693 (1853); or was a part owner of a victim bank; Salina v. Commonwealth, 217 Va. 92, 93 , 225 S.E.2d 199, 200 (1976).

1996A per se rule in Virginia has been approved only where the venireman knew of an accused’s prior conviction for the same offense, id.; stood in a near legal relationship to the victim of the accused, Gray v. Commonwealth, 226 Va. 591, 593 , 311 S.E.2d 409, 410 (1984), Jaques v. Commonwealth, 51 Va. (10 Gratt.) 690 , 693 (1853); or was a part owner of a victim bank; Salina v. Commonwealth, 217 Va. 92, 93 , 225 S.E.2d 199, 200 (1976).

2024While the Court acknowledged that “some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test,” it nevertheless concluded that a “careful case-by-case assessment of exigency” was required to avoid the “‘considerable overgeneralization’ that a per se rule would reflect.” Id. at 152-53 (quoting Richards v. Wisconsin, 520 U.S. 385, 393 (1997)).

2007See generally Richards v. Wisconsin, 520 U.S. 385, 394 , 117 S.Ct. 1416, 1421 , 137 L.Ed.2d 615 (1997) (stating that “[i]f a per se exception were allowed for each category of criminal investigation that included a considerable—albeit hypothetical—risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless”).

2023The majority appears to assert that by weighing the probative value versus prejudicial impact ourselves on appeal to consider whether the trial court reached the right result for the wrong 25 The majority cites Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 384 (2008), for the proposition that “the Court of Appeals should not have engaged in its own balancing of probative value against prejudicial effect, but should have remanded to the trial court to perform this balancing.” However, the Court of Appeals’ error in that case was “in concluding that the District Court applied a per s

2023The majority appears to assert that by weighing the probative value versus prejudicial impact ourselves on appeal to consider whether the trial court reached the right result for the wrong 25 The majority cites Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 384 (2008), for the proposition that “the Court of Appeals should not have engaged in its own balancing of probative value against prejudicial effect, but should have remanded to the trial court to perform this balancing.” However, the Court of Appeals’ error in that case was “in concluding that the District Court applied a per s

2019Given the unique circumstances, if Farrar creates a per se rule, it is limited to cases where the conviction of one defendant necessarily means the other defendant engaged in criminal conduct. -6- connection to appellant’s, varied greatly, and the source of that knowledge was the media, not the court itself.5 “Per se rules of disqualification, which are based on ‘a presumption of bias or prejudice,’ are disfavored in Virginia.”6 McGann v. Commonwealth, 15 Va. App. 448, 454 (1992) (quoting Scott v. Commonwealth, 1 Va. App. 447, 452 (1986)).

1996See Scott v. Commonwealth, 1 Va.App. 447 , 339 S.E.2d 899 (1986), aff'd, 233 Va. 5 , 353 S.E.2d 460 (1987).

2017In fairness, we must acknowledge that a single sentence of our opinion, see Livingston , 284 Va. at 161 , 726 S.E.2d at 276 ("We stress, however, that the Plaintiffs can only recover for damage to personal property that was appurtenant to their homes; for Article I, Section 11's primary focus is the taking and damaging of real property."), provides some conceptual scaffolding for such a claim.

2017In fairness, we must acknowledge that a single sentence of our opinion, see Livingston , 284 Va. at 161 , 726 S.E.2d at 276 ("We stress, however, that the Plaintiffs can only recover for damage to personal property that was appurtenant to their homes; for Article I, Section 11's primary focus is the taking and damaging of real property."), provides some conceptual scaffolding for such a claim.

2015However, “a confession is not per se invalid merely because the confessor implicates himself in an effort to secure the best possible disposition of a charge pending against a relative or friend ... it must also be shown that the . . . relative was improperly detained or threatened as the means whereby the confession was involuntarily extracted.” Ferguson v. Boyd, 566 F.2d 873, 878, n. 7 (4th Cir. 1977); see also Hill v. Commonwealth, 52 Va. App. 313, 320 , 663 S.E.2d 133, 136 (2008) (noting that “a threat to prosecute a family member” is not “a per se violation” of the defendant’s rights unde

2015However, “a confession is not per se invalid merely because the confessor implicates himself in an effort to secure the best possible disposition of a charge pending against a relative or friend ... it must also be shown that the . . . relative was improperly detained or threatened as the means whereby the confession was involuntarily extracted.” Ferguson v. Boyd, 566 F.2d 873, 878, n. 7 (4th Cir. 1977); see also Hill v. Commonwealth, 52 Va. App. 313, 320 , 663 S.E.2d 133, 136 (2008) (noting that “a threat to prosecute a family member” is not “a per se violation” of the defendant’s rights unde

2006See e.g., Robinette, 519 U.S. at 39 (refusing to adopt a per se rule prohibiting such encounters); see also Schneckloth, 412 U.S. at 227 (refusing to require police officers to warn potential subjects of a consent search that they have the right to refuse consent in order to preserve the consensual nature of the encounter).

1997See Ohio v. Robinette, U.S. , , 117 S. Ct. 417, 419 , 136 L.Ed.2d 347 (1996) (rejecting a bright-line rule requiring a police officer to 4 inform a suspect that he is "free to go" before requesting his consent to be searched); Bostick, 501 U.S. at 438-39 , 111 S. Ct. at 2388 (rejecting a per se rule that random bus searches are unconstitutional); Schneckloth, 412 U.S. at 227 , 93 S. Ct. at 2047-48 (rejecting a rule requiring the prosecution to establish knowledge of the right to refuse consent as the "sine qua non of effective consent").

2001“The Supreme Court has rejected a per se rule that Miranda warnings dissipate the taint of an illegal seizure.” Watson, 19 Va. App. at 665 (citing Brown v. Illinois, 422 U.S. 590, 603 , 45 L.

2001“The Supreme Court has rejected a per se rule that Miranda warnings dissipate the taint of an illegal seizure.” Watson, 19 Va. App. at 665 (citing Brown v. Illinois, 422 U.S. 590, 603 , 45 L.

2020Because questions of “reasonableness[,]” Brigham City, 547 U.S. at 403 , are not conducive to drawing bright lines, we are unable to craft “a per se rule of unreasonableness[,]” Illinois v. McArthur, 531 U.S. 326, 331 (2001), to address this situation.

2007Consequently, rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the entry was reasonable. 531 U.S. at 330-31 , 121 S.Ct. at 949 .

2015However, “a confession is not per se invalid merely because the confessor implicates himself in an effort to secure the best possible disposition of a charge pending against a relative or friend ... it must also be shown that the . . . relative was improperly detained or threatened as the means whereby the confession was involuntarily extracted.” Ferguson v. Boyd, 566 F.2d 873, 878, n. 7 (4th Cir. 1977); see also Hill v. Commonwealth, 52 Va. App. 313, 320 , 663 S.E.2d 133, 136 (2008) (noting that “a threat to prosecute a family member” is not “a per se violation” of the defendant’s rights unde

2014However, as this Court explained in Hill, Tipton merely holds that a trial court must consider all relevant evidence in determining whether a confession was induced by threats to prosecute family members, it “does not hold that a threat to prosecute a family member is a per se violation, nor does Tipton instruct on what quantum of evidence is necessary to render a confession involuntary and therefore inadmissible.” Hill, 52 Va. App. at 319 , 663 S.E.2d at 136 . -5- prosecution against a lawfully charged party was not unlawfully coercive, noting that a “‘confession is not per se invalid merely

1998See Blain, 7 Va. App. at 13-14 , 371 S.E.2d at 840 ; United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985) ("prison inmate is not automatically in 'custody' within the meaning of Miranda"); Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir. 1978) (rejecting a per se rule that any investigatory questioning within a prison requires Miranda warnings).

1998See Blain, 7 Va. App. at 13-14 , 371 S.E.2d at 840 ; United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985) ("prison inmate is not automatically in 'custody' within the meaning of Miranda"); Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir. 1978) (rejecting a per se rule that any investigatory questioning within a prison requires Miranda warnings).

2002Blain v. Commonwealth, 1 Va. App. 10, 371 S.E.2d 838 (1998); United States v. Conley, 779 F.2d 970 (4th Cir. 1985).

1998See Blain, 7 Va. App. at 13-14 , 371 S.E.2d at 840 ; United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985) ("prison inmate is not automatically in 'custody' within the meaning of Miranda"); Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir. 1978) (rejecting a per se rule that any investigatory questioning within a prison requires Miranda warnings).

1998See Blain, 7 Va. App. at 13-14 , 371 S.E.2d at 840 ; United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985) ("prison inmate is not automatically in 'custody' within the meaning of Miranda"); Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir. 1978) (rejecting a per se rule that any investigatory questioning within a prison requires Miranda warnings).

1998"The test . . . is whether there has been 'a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement,' . . . 'more than the usual restraint on a prisoner's liberty to depart.'" Blain, 7 Va. App. at 14 , 371 S.E.2d at 840 -41 (quoting Cervantes, 589 F.2d at 428 ). "[T]he issue whether a suspect is 'in custody,' and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review." Thompson v. Keohane, 516 U.S. 99, 102 (1995).

1997See Ohio v. Robinette, U.S. , , 117 S. Ct. 417, 419 , 136 L.Ed.2d 347 (1996) (rejecting a bright-line rule requiring a police officer to 4 inform a suspect that he is "free to go" before requesting his consent to be searched); Bostick, 501 U.S. at 438-39 , 111 S. Ct. at 2388 (rejecting a per se rule that random bus searches are unconstitutional); Schneckloth, 412 U.S. at 227 , 93 S. Ct. at 2047-48 (rejecting a rule requiring the prosecution to establish knowledge of the right to refuse consent as the "sine qua non of effective consent").

1997See Ohio v. Robinette, U.S. , , 117 S. Ct. 417, 419 , 136 L.Ed.2d 347 (1996) (rejecting a bright-line rule requiring a police officer to 4 inform a suspect that he is "free to go" before requesting his consent to be searched); Bostick, 501 U.S. at 438-39 , 111 S. Ct. at 2388 (rejecting a per se rule that random bus searches are unconstitutional); Schneckloth, 412 U.S. at 227 , 93 S. Ct. at 2047-48 (rejecting a rule requiring the prosecution to establish knowledge of the right to refuse consent as the "sine qua non of effective consent").

1996I do not, however, advocate a per se rule applicable in every prosecution of an indigent defendant. 1 In Ake v. Oklahoma, 470 U.S. 68 (1985), the Supreme Court, invoking the principles applied in Griffin v. Illinois, 351 U.S. 12 (1956) and in Britt v. North Carolina, 404 U.S. 226 (1971), held that the due process and equal protection clauses of the Fourteenth Amendment require a State to provide “the basic tools of an adequate defense ... to those defendants who cannot afford to pay for them.” 470 U.S. at 77 .

1996I do not, however, advocate a per se rule applicable in every prosecution of an indigent defendant. [1] In Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985), the Supreme Court, invoking the principles applied in Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956) and in Britt v. North Carolina, 404 U.S. 226 , 92 S.Ct. 431 , 30 L.Ed.2d 400 (1971), held that the due process and equal protection clauses of the Fourteenth Amendment require a State to provide "the basic tools of an adequate defense... to those defendants who cannot afford to pay for them." 470

1992Before conducting a search, the police must have "specific" and articulable facts "[that] reasonably warrant" a belief that the detained person is armed and dangerous. 463 U.S. at 1049 .

1992Before conducting a search, the police must have “specific” and articulable facts “[that] reasonably warrant” a belief that the detained person is armed and dangerous. 463 U.S. at 1049 .