aspect hearing in Virginia

2020While this Court is bound by the findings of fact of the full Commission, “a specific, recorded observation of a key witness’ demeanor or appearance in relation to credibility is an aspect of the hearing that the commission may not arbitrarily disregard.” Id. at 382 .

2014In Pierce, this Court held that “a specific recorded observation of a key witness’ demeanor or appearance in relation to credibility is an aspect of the hearing that the commission may not arbitrarily disregard” and that “[w]hen the commission does not follow such a finding, the record should indicate that the commission did -6- not arbitrarily ignore the finding.” Id. at 382 , 363 S.E.2d at 437 (emphasis added).

2025“Settled principles provide that appellant’s brief reference to the constitutional issue in his written motion [is] insufficient to preserve this aspect of the claim for appeal.” Howard v. Commonwealth, 55 Va. App. 417, 425 (2009).

2024See Howard v. Commonwealth, 55 Va. App. 417, 425 (2009) (“Settled principles provide that appellant’s brief reference to the constitutional issue in his written - 10 - motion was insufficient to preserve this aspect of the claim for appeal.”), aff’d, 281 Va. 455 (2011); Commonwealth v. Hilliard, 270 Va. 42, 53 (2005) (holding party failed to preserve issue of Sixth Amendment right to counsel where he mentioned it in his written motion to suppress but did not raise it during argument at the motion to suppress hearing and did not ask the trial court to rule on the claim).

2024See Howard v. Commonwealth, 55 Va. App. 417, 425 (2009) (“Settled principles provide that appellant’s brief reference to the constitutional issue in his written - 10 - motion was insufficient to preserve this aspect of the claim for appeal.”), aff’d, 281 Va. 455 (2011); Commonwealth v. Hilliard, 270 Va. 42, 53 (2005) (holding party failed to preserve issue of Sixth Amendment right to counsel where he mentioned it in his written motion to suppress but did not raise it during argument at the motion to suppress hearing and did not ask the trial court to rule on the claim).

2009See Commonwealth v. Hilliard, 270 Va. 42, 53 , 613 S.E.2d 579, 586 (2005) (holding party failed to preserve issue concerning Sixth Amendment right to counsel where he mentioned it in his written motion to suppress, but did not raise it in argument on the motion, in which he referred only to his Fifth Amendment right to counsel claims, and did not ask the trial court to rule on the claim).

1996Credibility Determination "[A] specific, recorded observation of a key witness' demeanor or appearance in relation to credibility is an aspect of the hearing that the commission may not arbitrarily disregard." Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 382 , 363 - 4 - S.E.2d 433, 437 (1987), appeal after remand, 9 Va. App. 120, 127 , 384 S.E.2d 333, 335 (1989).

1996Credibility Determination "[A] specific, recorded observation of a key witness' demeanor or appearance in relation to credibility is an aspect of the hearing that the commission may not arbitrarily disregard." Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 382 , 363 - 4 - S.E.2d 433, 437 (1987), appeal after remand, 9 Va. App. 120, 127 , 384 S.E.2d 333, 335 (1989).

2024See Howard v. Commonwealth, 55 Va. App. 417, 425 (2009) (“Settled principles provide that appellant’s brief reference to the constitutional issue in his written - 10 - motion was insufficient to preserve this aspect of the claim for appeal.”), aff’d, 281 Va. 455 (2011); Commonwealth v. Hilliard, 270 Va. 42, 53 (2005) (holding party failed to preserve issue of Sixth Amendment right to counsel where he mentioned it in his written motion to suppress but did not raise it during argument at the motion to suppress hearing and did not ask the trial court to rule on the claim).

2021Compare United States v. Hofus, 598 F.3d 1171, 1177-80 (9th Cir. 2010) (expert testimony inadmissible where expert opined that defendant was merely acting out a fantasy at the time of the offense), with Hite, 769 F.3d at 1168-70 (expert testimony on defendant’s sexual profile admissible where it did not express Nonetheless, appellant did not raise this argument in the trial court or on appeal, and reliance on it is not necessary for this Court to conclude the trial court erred here. 8 Although Federal Rule of Evidence 704 eliminated the “ultimate issue” rule in many respects, it still preserve

2021In other words, those courts maintain that even though an expert may not offer an opinion “on the defendant’s intent” or other mental state at the time of the alleged offense, the expert may nonetheless “give testimony that ‘supports an obvious inference with respect to the defendant’s state of mind if that testimony does not actually state an opinion on [the] ultimate issue, and instead leaves this inference for the jury to draw.’” United States v. Stahlman, 934 F.3d 1199, 1220 (11th Cir. 2019) (quoting United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011)).

2021In other words, those courts maintain that even though an expert may not offer an opinion “on the defendant’s intent” or other mental state at the time of the alleged offense, the expert may nonetheless “give testimony that ‘supports an obvious inference with respect to the defendant’s state of mind if that testimony does not actually state an opinion on [the] ultimate issue, and instead leaves this inference for the jury to draw.’” United States v. Stahlman, 934 F.3d 1199, 1220 (11th Cir. 2019) (quoting United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011)).

2021Compare United States v. Hofus, 598 F.3d 1171, 1177-80 (9th Cir. 2010) (expert testimony inadmissible where expert opined that defendant was merely acting out a fantasy at the time of the offense), with Hite, 769 F.3d at 1168-70 (expert testimony on defendant’s sexual profile admissible where it did not express Nonetheless, appellant did not raise this argument in the trial court or on appeal, and reliance on it is not necessary for this Court to conclude the trial court erred here. 8 Although Federal Rule of Evidence 704 eliminated the “ultimate issue” rule in many respects, it still preserve

2013Exceptions to Rule 5A:18 Appellant does not assert the good cause or ends of justice exception to Rule 5A:18 applies to any of these issues, and “we will not invoke one sua sponte.” Arrington v. Commonwealth, 53 Va. App. 635 , 642 n.7, 674 S.E.2d 554 , 557 n.7 (2009); see Edwards v. Commonwealth, 41 Va. App. 752, 761 , 589 S.E.2d 444, 448 (2003) (en banc) (holding the Court is not permitted to invoke the ends of justice exception sua sponte), aff’d by unpub’d order, No. 040019 (Va. Oct. 15, 2004). -5- B.

2013Exceptions to Rule 5A:18 Appellant does not assert the good cause or ends of justice exception to Rule 5A:18 applies to any of these issues, and “we will not invoke one sua sponte.” Arrington v. Commonwealth, 53 Va. App. 635 , 642 n.7, 674 S.E.2d 554 , 557 n.7 (2009); see Edwards v. Commonwealth, 41 Va. App. 752, 761 , 589 S.E.2d 444, 448 (2003) (en banc) (holding the Court is not permitted to invoke the ends of justice exception sua sponte), aff’d by unpub’d order, No. 040019 (Va. Oct. 15, 2004). -5- B.

2005See also Ogden Aviation Services v. Saghy, 32 Va. App. 89, 101 , 526 S.E.2d 756, 761-62 (2000); Allen & Rocks, Inc., 28 Va. App. at 673 , 508 S.E.2d at 340 ; Fingles v. Tatterson, 22 Va. App. 638, 641 , 472 S.E.2d 646, 647 (1996). “[A] specific, recorded observation of a key witness’ demeanor or appearance in relation to credibility is an aspect of the hearing that the commission may not arbitrarily disregard.

2005See also Ogden Aviation Services v. Saghy, 32 Va. App. 89, 101 , 526 S.E.2d 756, 761-62 (2000); Allen & Rocks, Inc., 28 Va. App. at 673 , 508 S.E.2d at 340 ; Fingles v. Tatterson, 22 Va. App. 638, 641 , 472 S.E.2d 646, 647 (1996). “[A] specific, recorded observation of a key witness’ demeanor or appearance in relation to credibility is an aspect of the hearing that the commission may not arbitrarily disregard.

2005See also Ogden Aviation Services v. Saghy, 32 Va. App. 89, 101 , 526 S.E.2d 756, 761-62 (2000); Allen & Rocks, Inc., 28 Va. App. at 673 , 508 S.E.2d at 340 ; Fingles v. Tatterson, 22 Va. App. 638, 641 , 472 S.E.2d 646, 647 (1996). “[A] specific, recorded observation of a key witness’ demeanor or appearance in relation to credibility is an aspect of the hearing that the commission may not arbitrarily disregard.

2005See also Ogden Aviation Services v. Saghy, 32 Va. App. 89, 101 , 526 S.E.2d 756, 761-62 (2000); Allen & Rocks, Inc., 28 Va. App. at 673 , 508 S.E.2d at 340 ; Fingles v. Tatterson, 22 Va. App. 638, 641 , 472 S.E.2d 646, 647 (1996). “[A] specific, recorded observation of a key witness’ demeanor or appearance in relation to credibility is an aspect of the hearing that the commission may not arbitrarily disregard.

2003This aspect of the test is “satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case.” Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995); accord Perez, 297 F.3d at 1266 ; Prusia, 18 F.3d at 640 ; ADM Agri-Industries, Ltd.

2003This aspect of the test is “satisfied when upholding the admissions would practically eliminate any presentation of the merits of the case.” Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995); accord Perez, 297 F.3d at 1266 ; Prusia, 18 F.3d at 640 ; ADM Agri-Industries, Ltd.