A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, relative to the subject matter of the civil action, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to the particular occasion on which the writing is supposed to have been made, and he may be asked if he did not make a writing of the purport of the one to be offered to contradict him, and if he denies making it, or does not admit its execution, it shall then be shown to him, and if he admits its genuineness, he shall be allowed to make his own explanation of it; but it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make such use of it for the purpose of the trial as it may think best. This section is subject to the qualification, that in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness and no extrajudicial recording made at any time other than simultaneously with the wrongful act or negligence at issue of the voice of such witness, or reproduction or transcript thereof, as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case. Nothing in this section shall be construed to prohibit the use of any such ex parte affidavit or statement in an action on an insurance policy based upon a judgment recovered in a personal injury or death by wrongful act case.
Code 1950, § 8-293; 1958, c. 380; 1960, c. 114; 1964, c. 356; 1977, c. 617; 2007, c. 598.
Notes of Decisions
Cited in
12
cases, 1983–2016 · leading case:
Gray v. Rhoads, 597 S.E.2d 93 (Va. 2004).
Gray v. Rhoads, 597 S.E.2d 93 (Va. 2004).
· cites it 35× “The provisions of Code § 8.01-404 prohibit the use of certain types of prior written statements to contradict a witness in a personal injury or wrongful death action.”
Ruhlin v. Samaan, 718 S.E.2d 447 (Va. 2011).
· cites it 28× “Ruhlin's counsel argued that the use of the transcript violated Code § 8.01-404. Samaan's counsel argued that the transcript was merely being used to refresh Ruhlin's recollection of the conversation, and that use of the transcript for that purpose did not violate Code § 8.”
Scott v. Greater Richmond Transit Co., 402 S.E.2d 214 (Va. 1991).
· cites it 12× “Scott contends that the trial court erred in admitting the statement because of the provisions of Code § 8.01-404. As pertinent, Code § 8.01-404 provides: A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, relative to the…”
Ohlen v. Shively, 430 S.E.2d 559 (Va. Ct. App. 1993).
· cites it 2× “1 (affidavit regarding damage to motor vehicle); Code § 8.01-404 (affidavit used as impeachment evidence for prior inconsistent statement); Code § 8.”
Richards v. Reed, 84 Va. Cir. 402 (Rockingham Cir. Ct. 2012).
· cites it 18× “The recorded statement pertains to the automobile accident that occurred on January 3, 2008, involving the parties. The recorded statement was subsequently reduced to writing in the form of a transcript.”
Insley v. Walsh, 85 Va. Cir. 442 (Surry Cir. Ct. 2012).
· cites it 11× “Va. Code Ann. § 8.01-404 (2012). Based on this statute, the Defendant may call Mr.”
Stern v. Alves, 69 Va. Cir. 291 (Fairfax Cir. Ct. 2005).
· cites it 6× “Va. Code Ann. § 8.01-404 (2005). In Gray v.”
Lewis v. Virginia Fork Produce, Inc., 44 Va. Cir. 17 (Richmond County Cir. Ct. 1997).
· cites it 8× “Defendants Virginia Fork Produce Com *18 pany and Holley have cited § 8.01-404 of the Code of Virginia as grounds for excluding the evidence.”
Doe v. Virginia Wesleyan Coll., 93 Va. Cir. 215 (Norfolk Cir. Ct. 2016).
· cites it 3× “2d 13, 17 (1942)) (interpreting Va. Code § 8.01-404). The Court in Harris clarified the scope of the Exclusion Provision as follows: *234 The statute was intended to correct these abuses, and to this extent it is a modification of the rule as to best evidence, but it was never…”
D. W. Boyd Corp. v. Coon, 86 Va. Cir. 509 (Norfolk Cir. Ct. 2013).
· cites it 3× “1 (affidavit regarding damage to motor vehicle); Va. Code § 8.01-404 (affidavit used as impeachment evidence for prior inconsistent statement); Va.”
Joe Gaines Foreman v. Kristie K. Ketchum (Va. Ct. App. 1999).
· cites it 2× “See Code § 8.01-404. Nor did he establish that the wife's trial testimony was in fact inconsistent with her prior statements.”
Sawyer v. Virginia Ass'n of Realtors, 6 Va. Cir. 65 (Virginia Beach Cir. Ct. 1983).
· cites it 2× “" (See Virginia code Section 8.01-404). On page 16 of that partial transcript, defense counsel says: "I think the statement is not admissible.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.