hearsay rule in Virginia

2026“As a general rule, hearsay evidence is incompetent and inadmissible, and ‘[t]he party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility.’” Esser v. Commonwealth, 38 Va. App. 520, 525 (2002) (alteration in original) (quoting Neal v. Commonwealth, 15 Va. App. 416, 421 (1992)); see Va. R.

2024He argues that no such exception applies.14 “As a general rule, hearsay evidence is incompetent and inadmissible, and ‘[t]he party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility.’” Esser v. Commonwealth, 38 Va. App. 520, 525 (2002) (alteration in original) (quoting Neal v. Commonwealth, 15 Va. App. 416, 421 (1992)).

2025“Hearsay evidence is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule, and the party attempting to introduce a hearsay statement has the burden of showing the statement falls within one of the exceptions.” Riner v. Commonwealth, 268 Va. 296, 336 (2004) (quoting Robinson v. Commonwealth, 258 Va. 3, 6 (1999)).

2022We need not decide whether the training receipt was a business record because the record demonstrates that it was admissible under this Court’s opinion in Twine v. Commonwealth, 48 Va. App. 224 (2006).2 In Twine, we held that “the price tag exception to the hearsay rule in shoplifting cases . . . permits the admission into evidence of a cash register receipt generated by scanning the bar codes on the stolen items of merchandise.” 48 Va. App. at 234 ; see also Robinson, 258 Va. at 10 (establishing the “price tag exception” to the rule against hearsay).

2018“Generally, an out-of-court statement by a criminal defendant, if relevant, is admissible as an exception to the hearsay rule when offered by the prosecution because it constitutes an admission of a party.” King v. Commonwealth, 18 Va. App. 57, 59 , 441 S.E.2d 704, 705 (1994) (emphasis added) (citing Alatishe v. Commonwealth, 12 Va. App. 376, 378 , 404 S.E.2d 81, 82 (1991)). “[W]hen proffered by the party who made the statement, such a statement is generally not admissible.” Id. (citing Tyree v. Lariew, 208 Va. 382, 385 , 158 S.E.2d 140, 143 (1967)).

2018“Generally, an out-of-court statement by a criminal defendant, if relevant, is admissible as an exception to the hearsay rule when offered by the prosecution because it constitutes an admission of a party.” King v. Commonwealth, 18 Va. App. 57, 59 , 441 S.E.2d 704, 705 (1994) (emphasis added) (citing Alatishe v. Commonwealth, 12 Va. App. 376, 378 , 404 S.E.2d 81, 82 (1991)). “[W]hen proffered by the party who made the statement, such a statement is generally not admissible.” Id. (citing Tyree v. Lariew, 208 Va. 382, 385 , 158 S.E.2d 140, 143 (1967)).

2025Excited Utterance “On appeal, this Court ‘reviews a trial court’s ruling admitting or excluding evidence for abuse of discretion.’” Church v. Commonwealth, 71 Va. App. 107 , 122 (2019) (quoting Payne v. Commonwealth, 292 Va. 855, 866 (2016)). “‘As a general rule, hearsay evidence is incompetent and inadmissible,’ and ‘the party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility.’” Taylor v. Commonwealth, 28 Va. App. 1, 10 (1998) (quoting Braxton v. Commonwealth, 26 Va. App. 176, 183-84 (1997)).

2023“A statement comes within the excited utterance exception to the hearsay rule and is admissible to prove the truth of the matter stated, when the statement is spontaneous and impulsive, thus guaranteeing its reliability.” Id. (quoting Braxton v. Commonwealth, 26 Va. App. 176, 184 (1997)).

2024During voir dire, he stated he 5 For purposes of the “declaration against interest” exception to the hearsay rule, a “reliable” statement is “one where ‘there is anything substantial other than the bare confession to connect the declarant with the crime.’” Ellison v. Commonwealth, 219 Va. 404, 408-09 (1978) (quoting Hines v. Commonwealth, 136 Va. 728, 748 (1923)). - 13 - did not “anticipate calling any witnesses.” He later attempted to introduce Tyriece Bazemore’s hearsay statement during cross-examination of Officer Strobel, but he admitted that even if Tyriece Bazemore had appeared at trial,

2020The Supreme Court of Virginia has interpreted the “reliability” requirement in Rule 2:804(b)(3)(B) to require more than a “bare confession,” but rather “anything substantial other than the bare confession to connect the declarant with the crime.” Ellison v. Commonwealth, 219 Va. 404, 408-09 (1978) (quoting Hines v. Commonwealth, 136 Va. 728, 748 (1923)) (“Thus, we believe it is settled in Virginia that, while a declaration against penal interest is recognized as an exception to the hearsay rule, such a declaration made out of court by a dead or otherwise unavailable witness is admissible only

2018“The hearsay rule does not operate to exclude evidence of a statement, request, or message offered for the mere purpose of explaining or throwing light on the conduct of the person to whom it was made.” Fuller v. Commonwealth, 201 Va. 724, 729 , 113 S.E.2d 667, 670 (1960).

2018“The hearsay rule does not operate to exclude evidence of a statement, request, or message offered for the mere purpose of explaining or throwing light on the conduct of the person to whom it was made.” Fuller v. Commonwealth, 201 Va. 724, 729 , 113 S.E.2d 667, 670 (1960).

2023Because the admission of such statements is generally prohibited, the “party seeking to have a hearsay declaration admitted at trial” bears the burden of “‘clearly show[ing]’ that the evidence falls within an exception to the hearsay rule.” Swanson v. Commonwealth, 56 Va. App. 147, 156 (2010) (quoting Doe v. Thomas, 227 Va. 466, 472 (1984)).

2010Doe v. Thomas, 227 Va. 466, 472 , 318 S.E.2d 382, 386 (1984); see also Neal v. Commonwealth, 15 Va.App. 416, 420-21 , 425 S.E.2d 521, 524 (1992) (“The party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility.”).

2023Accordingly, “[w]ords which constitute a question or accusation that result in a party admission are not barred by the hearsay evidence rule.” Id. (quoting Atkins v. Commonwealth, 13 Va. App. 365, 368 (1991)). “[I]f the declaration is offered solely to show that it was uttered, without regard to the truth or falsity of its content, the declaration is not excluded by the hearsay rule.” Bryant v. Commonwealth, 39 Va. App. 465, 473 (2002) (quoting Evans-Smith v. Commonwealth, 5 Va. App. 188, 197 (1987)).

2019Generally, “hearsay evidence is admissible if it falls into one of the recognized exceptions to the hearsay rule . . . .” Evans-Smith v. Commonwealth, 5 Va. App. 188, 197 (1987).

2013The Supreme Court, in Kettler & Scott, stated that “[i]n determining the admissibility of computer records, when the argument has been advanced that they are inadmissible hearsay, we have employed the *122 traditional business records exception to the hearsay rule.” 248 Va. at 457 , 449 S.E.2d at 785 (citing Frye v. Commonwealth, 231 Va. 370, 387 , 345 S.E.2d 267, 279 (1986)).

2013The Supreme Court, in Kettler & Scott, stated that “[i]n determining the admissibility of computer records, when the argument has been advanced that they are inadmissible hearsay, we have employed the *122 traditional business records exception to the hearsay rule.” 248 Va. at 457 , 449 S.E.2d at 785 (citing Frye v. Commonwealth, 231 Va. 370, 387 , 345 S.E.2d 267, 279 (1986)).

2013“Under the modern Shopbook Rule, . . . a recognized exception to the hearsay rule, verified regular entries may be admitted in evidence without requiring proof from the original observers or record keepers.” Ford Motor Co. v. Phelps, 239 Va. 272, 275 , 389 S.E.2d 454, 457 (1990). “‘Admission of such evidence is conditioned . . . on proof that the document comes from the proper custodian and that it is a record kept in the ordinary course of business made contemporaneously with the event by persons having the duty to keep a true record.’” Sparks v. Commonwealth, 24 Va. App. 279, 282 , 482 S.E.2

2013“Under the modern Shopbook Rule, . . . a recognized exception to the hearsay rule, verified regular entries may be admitted in evidence without requiring proof from the original observers or record keepers.” Ford Motor Co. v. Phelps, 239 Va. 272, 275 , 389 S.E.2d 454, 457 (1990). “‘Admission of such evidence is conditioned . . . on proof that the document comes from the proper custodian and that it is a record kept in the ordinary course of business made contemporaneously with the event by persons having the duty to keep a true record.’” Sparks v. Commonwealth, 24 Va. App. 279, 282 , 482 S.E.2

2025Excited Utterance “On appeal, this Court ‘reviews a trial court’s ruling admitting or excluding evidence for abuse of discretion.’” Church v. Commonwealth, 71 Va. App. 107 , 122 (2019) (quoting Payne v. Commonwealth, 292 Va. 855, 866 (2016)). “‘As a general rule, hearsay evidence is incompetent and inadmissible,’ and ‘the party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility.’” Taylor v. Commonwealth, 28 Va. App. 1, 10 (1998) (quoting Braxton v. Commonwealth, 26 Va. App. 176, 183-84 (1997)).

2023Code § 8.01-389(A) “codifies the official records exception to the hearsay rule,” Taylor v. Commonwealth, 28 Va. App. 1, 12 (1998), and provides that “[t]he records of any judicial proceeding and any other official records of any court of this Commonwealth shall be received as -9- prima facie evidence provided that such records are certified by the clerk of the court where preserved to be a true record.” Here, the court erred in finding that it had authority to consider the complaints under Code § 8.01-389(A).

2013In order for hearsay to be admissible, it must “come within one of the many established exceptions to the general prohibition against admitting hearsay.” Hanson v. Commonwealth, 14 Va. App. 173, 187 , 416 S.E.2d 14, 22 (1992). “‘[T]he party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility.’” Braxton v. Commonwealth, 26 Va. App. 176, 183-84 , 493 S.E.2d 688, 691 (1997) (quoting Neal v. Commonwealth, 15 Va. App. 416, 420-21 , 425 S.E.2d 521, 524 (1992)).

2013In order for hearsay to be admissible, it must “come within one of the many established exceptions to the general prohibition against admitting hearsay.” Hanson v. Commonwealth, 14 Va. App. 173, 187 , 416 S.E.2d 14, 22 (1992). “‘[T]he party seeking to rely upon an exception to the hearsay rule has the burden of establishing admissibility.’” Braxton v. Commonwealth, 26 Va. App. 176, 183-84 , 493 S.E.2d 688, 691 (1997) (quoting Neal v. Commonwealth, 15 Va. App. 416, 420-21 , 425 S.E.2d 521, 524 (1992)).

2024As such, the hearsay exception in Code § 8.01-389 only applies “if the document ‘relates facts or events within the personal knowledge and observation of the recording official to which he could testify should he be called as a witness.’” Ingram v. Commonwealth, 1 Va. App. 335, 339 (1986) (quoting Williams v. Commonwealth, 213 Va. 45, 46 (1972)).

2023The hearsay exception in the statute only applies “if the document ‘relates facts or events within the personal knowledge and observation of the recording official to which he could testify should he be called as a witness.’” Ingram v. Commonwealth, 1 Va. App. 335, 339 (1986) (quoting Williams v. Commonwealth, 213 Va. 45, 46 (1972)).

2013The Supreme Court, in Kettler & Scott, stated that “[i]n determining the admissibility of computer records, when the argument has been advanced that they are inadmissible hearsay, we have employed the *122 traditional business records exception to the hearsay rule.” 248 Va. at 457 , 449 S.E.2d at 785 (citing Frye v. Commonwealth, 231 Va. 370, 387 , 345 S.E.2d 267, 279 (1986)).

2013The Supreme Court, in Kettler & Scott, stated that “[i]n determining the admissibility of computer records, when the argument has been advanced that they are inadmissible hearsay, we have employed the *122 traditional business records exception to the hearsay rule.” 248 Va. at 457 , 449 S.E.2d at 785 (citing Frye v. Commonwealth, 231 Va. 370, 387 , 345 S.E.2d 267, 279 (1986)).

2020Steel Erectors Co. v. Int’l Union of Operating Engineers, Local 147, 147A, 147B & 147R, 219 Va. 227, 236 (1978). “[I]n order for a hearsay declaration which contains hearsay within it to be admissible, both the primary hearsay declaration and each hearsay declaration included within it must conform to a recognized exception to the hearsay rule.” West v. Commonwealth, 12 Va. App. 906, 910 (1991).

2016See West v. Commonwealth, 12 Va. App. 906, 910 , 407 S.E.2d 22, 24 (1991) (holding that “for a hearsay declaration which contains hearsay within it to be admissible, both the primary hearsay declaration and each hearsay declaration included within it must conform to a recognized exception to the hearsay rule”).

2024“If the court can determine, from the context and from the other evidence in the case that the evidence is offered for a different purpose [than the truth of the matter asserted], the hearsay rule is no barrier to its admission.” Id. (quoting Manetta v. Commonwealth, 231 Va. 123, 127 (1986)).

2019See Manetta v. Commonwealth, 231 Va. 123, 127 (1986) (acknowledging that “the hearsay rule is no barrier” to the admission of evidence that “is offered for a different purpose” other than “the truth of the matter asserted” (emphasis and citation omitted)); 1 Craig D.

1997However, Chambers’ statement is independently admissible against appellant as a declaration against penal interest made by an unavailable witness. “ £[I]t is settled in Virginia that ... a declaration against penal interest is recognized as an exception to. the hearsay rule.’ ” Id. at 4-5 , 359 S.E.2d at 832 (citation omitted).

1997However, Chambers’ statement is independently admissible against appellant as a declaration against penal interest made by an unavailable witness. “ £[I]t is settled in Virginia that ... a declaration against penal interest is recognized as an exception to. the hearsay rule.’ ” Id. at 4-5 , 359 S.E.2d at 832 (citation omitted).

2023Evid. 2:801(c)). “[I]f the value of the evidence is not tied to its credibility—i.e. is not offered for its truth—then - 21 - the hearsay rule does not operate to exclude it.” Id. at 508 (citing Winston v. Commonwealth, 268 Va. 564, 591 (2004)).

2023Evid. 2:801(c)). “[I]f the value of the evidence is not tied to its credibility—i.e. is not offered for its truth—then - 21 - the hearsay rule does not operate to exclude it.” Id. at 508 (citing Winston v. Commonwealth, 268 Va. 564, 591 (2004)).

2025“Generally, statements made by a crime victim that show the victim’s state of mind are admissible as an exception to the hearsay rule, provided the statements are relevant and probative of some material issue in the case.” Khine, 75 Va. App. at 445 (quoting Clay v. Commonwealth, 262 Va. 253, 257 (2001)). “[F]or the state of mind of the victim to be relevant to prove the state of mind of the accused, some nexus must exist which inferentially implicates the accused,” such as “previous threats made by the defendant toward[] the victim, narrations of past incidents of violence on the part of the d

2025“Generally, statements made by a crime victim that show the victim’s state of mind are admissible as an exception to the hearsay rule, provided the statements are relevant and probative of some material issue in the case.” Khine, 75 Va. App. at 445 (quoting Clay v. Commonwealth, 262 Va. 253, 257 (2001)). “[F]or the state of mind of the victim to be relevant to prove the state of mind of the accused, some nexus must exist which inferentially implicates the accused,” such as “previous threats made by the defendant toward[] the victim, narrations of past incidents of violence on the part of the d

2004“The admissibility of a statement made by an unavailable witness that is against his or her penal interests ‘is a “firmly rooted” exception to the hearsay rule in Virginia.’” Pitt v. Commonwealth, 28 Va. App. 730, 741 , 508 S.E.2d 891, 897 (1999) (quoting Raia v. Commonwealth, 23 Va. App. 546, 552 , 478 S.E.2d 328, 331 (1996)); see also Ellison v. Commonwealth, 219 Va. 404, 408 , 247 S.E.2d 685, 688 (1978); Hines v. Commonwealth, 136 Va. 728, 747 , 117 S.E. 843, 848 (1923).

2004“The admissibility of a statement made by an unavailable witness that is against his or her penal interests ‘is a “firmly rooted” exception to the hearsay rule in Virginia.’” Pitt v. Commonwealth, 28 Va. App. 730, 741 , 508 S.E.2d 891, 897 (1999) (quoting Raia v. Commonwealth, 23 Va. App. 546, 552 , 478 S.E.2d 328, 331 (1996)); see also Ellison v. Commonwealth, 219 Va. 404, 408 , 247 S.E.2d 685, 688 (1978); Hines v. Commonwealth, 136 Va. 728, 747 , 117 S.E. 843, 848 (1923).

2026Evid. 2:801(c). “[H]earsay evidence is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule, and . . . the party attempting to introduce a hearsay statement has the burden of showing the statement falls within one of the exceptions.” Campos v. Commonwealth, 67 Va. App. 690, 705 (2017) (alterations in original) (quoting Godoy v. Commonwealth, 62 Va. App. 113, 119 (2013)).

2025It “is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule, and . . . the party attempting to introduce a hearsay statement has the burden of showing the statement falls within one of the exceptions.” Campos v. Commonwealth, 67 Va. App. 690, 705 (2017) (alteration in original) (quoting Godoy v. Commonwealth, 62 Va. App. 113, 119 (2013)).

2018“Generally, an out-of-court statement by a criminal defendant, if relevant, is admissible as an exception to the hearsay rule when offered by the prosecution because it constitutes an admission of a party.” King v. Commonwealth, 18 Va. App. 57, 59 , 441 S.E.2d 704, 705 (1994) (emphasis added) (citing Alatishe v. Commonwealth, 12 Va. App. 376, 378 , 404 S.E.2d 81, 82 (1991)). “[W]hen proffered by the party who made the statement, such a statement is generally not admissible.” Id. (citing Tyree v. Lariew, 208 Va. 382, 385 , 158 S.E.2d 140, 143 (1967)).

2018“Generally, an out-of-court statement by a criminal defendant, if relevant, is admissible as an exception to the hearsay rule when offered by the prosecution because it constitutes an admission of a party.” King v. Commonwealth, 18 Va. App. 57, 59 , 441 S.E.2d 704, 705 (1994) (emphasis added) (citing Alatishe v. Commonwealth, 12 Va. App. 376, 378 , 404 S.E.2d 81, 82 (1991)). “[W]hen proffered by the party who made the statement, such a statement is generally not admissible.” Id. (citing Tyree v. Lariew, 208 Va. 382, 385 , 158 S.E.2d 140, 143 (1967)).

2005The request to the clerk shall be on a form prescribed by the Supreme Court and filed with the clerk at least ten days prior to trial. *135 2002 Va. Acts, ch. 832. 2 This statute “imposes a condition for the exoneration of an otherwise hearsay document from the application of the hearsay rule, thus making that document admissible.” Basfield v. Commonwealth, 11 Va.App. 122, 124 , 398 S.E.2d 80, 81 (1990).

2005The request to the clerk shall be on a form prescribed by the Supreme Court and filed with the clerk at least ten days prior to trial. *135 2002 Va. Acts, ch. 832. 2 This statute “imposes a condition for the exoneration of an otherwise hearsay document from the application of the hearsay rule, thus making that document admissible.” Basfield v. Commonwealth, 11 Va.App. 122, 124 , 398 S.E.2d 80, 81 (1990).

2026Evid. 2:801(c). “[H]earsay evidence is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule, and . . . the party attempting to introduce a hearsay statement has the burden of showing the statement falls within one of the exceptions.” Campos v. Commonwealth, 67 Va. App. 690, 705 (2017) (alterations in original) (quoting Godoy v. Commonwealth, 62 Va. App. 113, 119 (2013)).

2025It “is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule, and . . . the party attempting to introduce a hearsay statement has the burden of showing the statement falls within one of the exceptions.” Campos v. Commonwealth, 67 Va. App. 690, 705 (2017) (alteration in original) (quoting Godoy v. Commonwealth, 62 Va. App. 113, 119 (2013)).

2025“Evidence of an excited utterance is admissible to prove the truth of the matter asserted, as an exception to the hearsay rule, provided the extrajudicial statement is ‘spontaneous and impulsive.’” Clark v. Commonwealth, 235 Va. 287, 292 (1988) (quoting Upton v. Commonwealth, 172 Va. 654, 657 (1939)).

2011Resolution of the issue depends upon the circumstances of each case and ‘rests within the sound judicial discretion and judgment of the trial court.’ ” Clark v. Com *669 monwealth, 235 Va. 287, 292 , 367 S.E.2d 483, 486 (1988) (quoting Huffman v. Commonwealth, 168 Va. 668, 681 , 190 S.E. 265, 271 (1937)). “ ‘A statement comes within the excited utterance exception to the hearsay rule and is admissible to prove the truth of the matter stated, when the statement is spontaneous and impulsive, thus guaranteeing its reliability.’ ” Esser v. Commonwealth, 38 Va.App. 520, 525 , 566 S.E.2d 876, 879 (2

2022“As with most evidentiary questions, ‘[w]hether an adequate foundation has been laid for a hearsay exception involves an exercise of discretion by the trial court.’” Id. at 134 (quoting Joyce v. Commonwealth, 56 Va. App. 646, 663 (2010)).

2018Hearsay “is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule . . . .” McDowell v. Commonwealth, 48 Va. App. 104, 109 , 628 S.E.2d 542, 544 (2006) (quoting Robinson v. Commonwealth, 258 Va. 3, 6 , 516 S.E.2d 475, 477 (1999)).

2025“A statement may become admissible under the adoptive admission exception to the hearsay rule upon a showing of its tacit adoption by a party, as well as by more overt demonstrations of adoption.” Lynch, 272 Va. at 209 .

2025“A party may manifest adoption of a statement made by another in any number of ways, including words, conduct, or silence.” Id. - 11 - However, “[a] party relying upon an exception to the hearsay rule for the admissibility of evidence bears the burden of persuading the court that the evidence falls within the exception.” Id. at 207-08 .

2013The hearsay rule exists because hearsay evidence has “traditionally . . . been considered unreliable evidence.” Myrick v. Commonwealth, 13 Va. App. 333, 337 , 412 S.E.2d 176, 178 (1991).

2013The hearsay rule exists because hearsay evidence has “traditionally . . . been considered unreliable evidence.” Myrick v. Commonwealth, 13 Va. App. 333, 337 , 412 S.E.2d 176, 178 (1991).