Virginia: Prior Witness Testimony – a Lawyer’s Evidence
In the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester, Virginia, plaintiffs introduced as evidence at trail on sovereign immunity the de bene esse deposition of a key witness taken in the initial proceeding that was non-suited. Defendant Burns objected, referring generally to Va. Sup. Ct. Rule 7; but the Virginia Supreme Court has ruled on point in favor of Plaintiffs.
“[P]rior testimony is admissible if the court is satisfied: (1) that the party against whom the evidence is offered, or his privy, was a part to the former trial; (2) that the issue is substantially the same in the two cases; (3) that the witness who proposes to testify to the former evidence is able to state it with satisfactory correctness; and (4) that a sufficient reason is shown why the original witness is not produced.” Gray v. Graham, 231 Va. 1, 5 (1986). The salutary rule of Gray is followed by its progeny. E.g., Morgan v. Commonwealth, 50 Va. App. 369, 376 (2007); Jones v. Commonwealth, 22 Va. App. 46, 51 (1996); and Commonwealth Transp. Comm’r v. Wee Folks Nursery, Inc., 371 Va. Cir. 463, 464 (1996).”
