Virginia rule in Virginia

2011Wigmore, A Treatise of Anglo-American System of Evidence in Trials at Common Law § 568, at 660 (3d ed.1940)); see also Speller v. Commonwealth, 2 Va.App. 437, 441 , 345 S.E.2d 542, 545 (1986) (noting “the *721 longstanding Virginia rule is that a witness need not be a medical expert to offer testimony concerning a person’s physical condition”). 6 “Great liberality should be shown by the courts in applying this principle, so that the cause of justice may not be obstructed by narrow and finical rulings.” McCullers, 189 Va. at 97 , 52 S.E.2d at 260 (citation omitted).

2011Wigmore, A Treatise of Anglo-American System of Evidence in Trials at Common Law § 568, at 660 (3d ed.1940)); see also Speller v. Commonwealth, 2 Va.App. 437, 441 , 345 S.E.2d 542, 545 (1986) (noting “the *721 longstanding Virginia rule is that a witness need not be a medical expert to offer testimony concerning a person’s physical condition”). 6 “Great liberality should be shown by the courts in applying this principle, so that the cause of justice may not be obstructed by narrow and finical rulings.” McCullers, 189 Va. at 97 , 52 S.E.2d at 260 (citation omitted).

1992The Virginia test regarding the use of adoptive admissions as an exception to the rule against hearsay is “whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so.” Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947).

1992The Virginia test regarding the use of adoptive admissions as an exception to the rule against hearsay is “whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so.” Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947).

2024See Koffman v. Garnett, 265 Va. 12 (2003); see also Locklear v. Pometto, 28 Va. Cir. 307 (Fairfax Cnty. 1992); Summerell v. Wolfskill, 34 Va. Cir. 518 (Southampton Cnty. 1994).

2024See Koffman v. Garnett, 265 Va. 12 (2003); see also Locklear v. Pometto, 28 Va. Cir. 307 (Fairfax Cnty. 1992); Summerell v. Wolfskill, 34 Va. Cir. 518 (Southampton Cnty. 1994).

2024See Koffman v. Garnett, 265 Va. 12 (2003); see also Locklear v. Pometto, 28 Va. Cir. 307 (Fairfax Cnty. 1992); Summerell v. Wolfskill, 34 Va. Cir. 518 (Southampton Cnty. 1994).

2024See Koffman v. Garnett, 265 Va. 12 (2003); see also Locklear v. Pometto, 28 Va. Cir. 307 (Fairfax Cnty. 1992); Summerell v. Wolfskill, 34 Va. Cir. 518 (Southampton Cnty. 1994).

2011Wigmore, A Treatise of Anglo-American System of Evidence in Trials at Common Law § 568, at 660 (3d ed.1940)); see also Speller v. Commonwealth, 2 Va.App. 437, 441 , 345 S.E.2d 542, 545 (1986) (noting “the *721 longstanding Virginia rule is that a witness need not be a medical expert to offer testimony concerning a person’s physical condition”). 6 “Great liberality should be shown by the courts in applying this principle, so that the cause of justice may not be obstructed by narrow and finical rulings.” McCullers, 189 Va. at 97 , 52 S.E.2d at 260 (citation omitted).

2011Wigmore, A Treatise of Anglo-American System of Evidence in Trials at Common Law § 568, at 660 (3d ed.1940)); see also Speller v. Commonwealth, 2 Va.App. 437, 441 , 345 S.E.2d 542, 545 (1986) (noting “the *721 longstanding Virginia rule is that a witness need not be a medical expert to offer testimony concerning a person’s physical condition”). 6 “Great liberality should be shown by the courts in applying this principle, so that the cause of justice may not be obstructed by narrow and finical rulings.” McCullers, 189 Va. at 97 , 52 S.E.2d at 260 (citation omitted).

1999See Craig v. Commonwealth, 14 Va.App. 842, 844 , 419 S.E.2d 429, 431 (1992) (holding that when a claim of self-defense is made “the acts must be viewed through the eyes of the person allegedly threatened”); cf. Jacobs v. Jacobs, 218 Va. 264, 267 , 237 S.E.2d 124, 126 (1977) (in civil context, question of duress “is to be determined on consideration of the surrounding circumstances such as age, sex, capacity, situation, and relation of the parties”).

1999See Craig v. Commonwealth, 14 Va.App. 842, 844 , 419 S.E.2d 429, 431 (1992) (holding that when a claim of self-defense is made “the acts must be viewed through the eyes of the person allegedly threatened”); cf. Jacobs v. Jacobs, 218 Va. 264, 267 , 237 S.E.2d 124, 126 (1977) (in civil context, question of duress “is to be determined on consideration of the surrounding circumstances such as age, sex, capacity, situation, and relation of the parties”).

1999Although most jurisdictions require that an accused’s fear be both subjectively real and objectively reasonable before a homicide or wounding will be justified or excused on the ground of necessity, the Supreme Court has expressly rejected any objective component in Virginia’s test. 3 The Supreme Court has ruled as follows: “ “What reasonably appeared to the accused at the time of the shooting, as creating the necessity for his [or her] act, is the test and not what reasonably appeared to him [or her], provided it would so appear to some other reasonable person under similar circumstances.’ ”

1999Although most jurisdictions require that an accused’s fear be both subjectively real and objectively reasonable before a homicide or wounding will be justified or excused on the ground of necessity, the Supreme Court has expressly rejected any objective component in Virginia’s test. 3 The Supreme Court has ruled as follows: “ “What reasonably appeared to the accused at the time of the shooting, as creating the necessity for his [or her] act, is the test and not what reasonably appeared to him [or her], provided it would so appear to some other reasonable person under similar circumstances.’ ”

1999See Craig v. Commonwealth, 14 Va.App. 842, 844 , 419 S.E.2d 429, 431 (1992) (holding that when a claim of self-defense is made “the acts must be viewed through the eyes of the person allegedly threatened”); cf. Jacobs v. Jacobs, 218 Va. 264, 267 , 237 S.E.2d 124, 126 (1977) (in civil context, question of duress “is to be determined on consideration of the surrounding circumstances such as age, sex, capacity, situation, and relation of the parties”).

1999See Craig v. Commonwealth, 14 Va.App. 842, 844 , 419 S.E.2d 429, 431 (1992) (holding that when a claim of self-defense is made “the acts must be viewed through the eyes of the person allegedly threatened”); cf. Jacobs v. Jacobs, 218 Va. 264, 267 , 237 S.E.2d 124, 126 (1977) (in civil context, question of duress “is to be determined on consideration of the surrounding circumstances such as age, sex, capacity, situation, and relation of the parties”).

1990I agree with the majority that the Virginia test regarding the use of adoptive admissions as an exception to the hearsay rule "is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so." Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947); see also Artis v. Commonwealth, 213 Va. 220, 224-25 , 191 S.E.2d 190, 193 (1972); Baughan v. Commonwealth, 206 Va. 28 , 141 S.E.2d 750 (1965); Dykeman v. Commonwealth, 201 Va. 807, 812 , 113 S.E.2d 867,

1990I agree with the majority that the Virginia test regarding the use of adoptive admissions as an exception to the hearsay rule "is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so." Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947); see also Artis v. Commonwealth, 213 Va. 220, 224-25 , 191 S.E.2d 190, 193 (1972); Baughan v. Commonwealth, 206 Va. 28 , 141 S.E.2d 750 (1965); Dykeman v. Commonwealth, 201 Va. 807, 812 , 113 S.E.2d 867,

1990I agree with the majority that the Virginia test regarding the use of adoptive admissions as an exception to the hearsay rule "is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so." Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947); see also Artis v. Commonwealth, 213 Va. 220, 224-25 , 191 S.E.2d 190, 193 (1972); Baughan v. Commonwealth, 206 Va. 28 , 141 S.E.2d 750 (1965); Dykeman v. Commonwealth, 201 Va. 807, 812 , 113 S.E.2d 867,

1990I agree with the majority that the Virginia test regarding the use of adoptive admissions as an exception to the hearsay rule "is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so." Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947); see also Artis v. Commonwealth, 213 Va. 220, 224-25 , 191 S.E.2d 190, 193 (1972); Baughan v. Commonwealth, 206 Va. 28 , 141 S.E.2d 750 (1965); Dykeman v. Commonwealth, 201 Va. 807, 812 , 113 S.E.2d 867,

1990I agree with the majority that the Virginia test regarding the use of adoptive admissions as an exception to the hearsay rule "is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so." Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947); see also Artis v. Commonwealth, 213 Va. 220, 224-25 , 191 S.E.2d 190, 193 (1972); Baughan v. Commonwealth, 206 Va. 28 , 141 S.E.2d 750 (1965); Dykeman v. Commonwealth, 201 Va. 807, 812 , 113 S.E.2d 867,

1990I agree with the majority that the Virginia test regarding the use of adoptive admissions as an exception to the hearsay rule "is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so." Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947); see also Artis v. Commonwealth, 213 Va. 220, 224-25 , 191 S.E.2d 190, 193 (1972); Baughan v. Commonwealth, 206 Va. 28 , 141 S.E.2d 750 (1965); Dykeman v. Commonwealth, 201 Va. 807, 812 , 113 S.E.2d 867,

1990I agree with the majority that the Virginia test regarding the use of adoptive admissions as an exception to the hearsay rule "is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so." Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947); see also Artis v. Commonwealth, 213 Va. 220, 224-25 , 191 S.E.2d 190, 193 (1972); Baughan v. Commonwealth, 206 Va. 28 , 141 S.E.2d 750 (1965); Dykeman v. Commonwealth, 201 Va. 807, 812 , 113 S.E.2d 867,

1990I agree with the majority that the Virginia test regarding the use of adoptive admissions as an exception to the hearsay rule "is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so." Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947); see also Artis v. Commonwealth, 213 Va. 220, 224-25 , 191 S.E.2d 190, 193 (1972); Baughan v. Commonwealth, 206 Va. 28 , 141 S.E.2d 750 (1965); Dykeman v. Commonwealth, 201 Va. 807, 812 , 113 S.E.2d 867,

1988Because Dr. Lester has not demonstrated the same familiarity with the Virginia standard of care as was demonstrated in Grubb and Henning, supra, he will not be allowed to testify as an expert in this case.

1988Because Dr. Lester has not demonstrated the same familiarity with the Virginia standard of care as was demonstrated in Grubb and Henning, supra, he will not be allowed to testify as an expert in this case.

2004The Virginia standard for denying a motion to withdraw a guilty plea was explained in Zigta v. Commonwealth 38 Va. App. 149, 153 , 562 S.E.2d 347, 349 (2002), “Code § 19.2-296 allows a defendant to withdraw a guilty plea before sentence is imposed.” Jones v. Commonwealth, 29 Va. App. 503, 511 , 513 S.E.2d 431, 435 (1999).

2004The Virginia standard for denying a motion to withdraw a guilty plea was explained in Zigta v. Commonwealth 38 Va. App. 149, 153 , 562 S.E.2d 347, 349 (2002), “Code § 19.2-296 allows a defendant to withdraw a guilty plea before sentence is imposed.” Jones v. Commonwealth, 29 Va. App. 503, 511 , 513 S.E.2d 431, 435 (1999).

1995Grubb v. Hocker, 229 Va. 172, 176 (1985) (a doctor, previously licensed in Virginia, maintained familiarity with Virginia’s standard of care by maintaining contacts with Virginia doctors and attending lectures by Virginia doctors and was therefore qualified as an expert witness).

1988In Grubb v. Hocker, 229 Va. 172 , 326 S.E.2d 698 (1985), we pointed out, in essence, that there is no rigid formula to determine the knowledge or familiarity of a proffered expert concerning the Virginia standard of care.

1990I agree with the majority that the Virginia test regarding the use of adoptive admissions as an exception to the hearsay rule "is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so." Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947); see also Artis v. Commonwealth, 213 Va. 220, 224-25 , 191 S.E.2d 190, 193 (1972); Baughan v. Commonwealth, 206 Va. 28 , 141 S.E.2d 750 (1965); Dykeman v. Commonwealth, 201 Va. 807, 812 , 113 S.E.2d 867,

1990I agree with the majority that the Virginia test regarding the use of adoptive admissions as an exception to the hearsay rule "is whether [persons] similarly situated would have felt themselves called upon to deny the statements affecting them in the event they did not intend to express acquiescence by their failure to do so." Owens v. Commonwealth, 186 Va. 689, 699 , 43 S.E.2d 895, 899 (1947); see also Artis v. Commonwealth, 213 Va. 220, 224-25 , 191 S.E.2d 190, 193 (1972); Baughan v. Commonwealth, 206 Va. 28 , 141 S.E.2d 750 (1965); Dykeman v. Commonwealth, 201 Va. 807, 812 , 113 S.E.2d 867,

2026Consistent with Virginia’s rule against arbitrary factfinding, federal appellate courts have held that a court may not disbelieve a safety valve applicant’s testimony without a solid reason to do so—they cannot assume that a safety valve applicant has lied “based on pure speculation.” United States v. Miller, 179 F.3d 961, 969 (5th Cir. 1999); see also United States v. Miranda-Santiago, 96 F.3d 517, 529 (1st Cir. 1996) (“The government cannot ensure success simply by saying, ‘We don’t believe the defendant,’ and doing nothing more.”); United States v. 9 Recall that the governing standard of re

2026The reviewing appellate court must be able to “say, with fair assurance, after pondering all that happened . . . , that the judgment was not substantially swayed by the error” and “substantial rights were not affected.” Clay, 262 Va. at 260 (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

2026Consistent with Virginia’s rule against arbitrary factfinding, federal appellate courts have held that a court may not disbelieve a safety valve applicant’s testimony without a solid reason to do so—they cannot assume that a safety valve applicant has lied “based on pure speculation.” United States v. Miller, 179 F.3d 961, 969 (5th Cir. 1999); see also United States v. Miranda-Santiago, 96 F.3d 517, 529 (1st Cir. 1996) (“The government cannot ensure success simply by saying, ‘We don’t believe the defendant,’ and doing nothing more.”); United States v. 9 Recall that the governing standard of re

2026Virginia’s standard for reviewing nonconstitutional error for harmlessness provides that the verdict should stand if it is clear from the record that the error “did not ‘influence the jury’ or had only a ‘slight effect.’” Shifflett v. Commonwealth, 289 Va. 10 , 12 (2015) (per curiam) (quoting Clay v. Commonwealth, 262 Va. 253, 260 (2001)); see Shaw, 304 Va. at 234-35.

2026The reviewing appellate court must be able to “say, with fair assurance, after pondering all that happened . . . , that the judgment was not substantially swayed by the error” and “substantial rights were not affected.” Clay, 262 Va. at 260 (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)).