Virginia Statute Prevents Admission into Evidence of Some Written or Recorded Statements Taken by Insurance Adjusters


Virginia civil law can be odd in a number of ways, not the least of which is the intent and effect of Virginia Code Ann. § 8.01-404 concerning prior written or recorded statements by witnesses. This statute, which contradicts the majority evidence rule that permit a defense attorney to use a prior written statement to cross-examine a witness, states that “(I)n an action to recover for personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing, other than a deposition, of a witness and no extrajudicial recording made at any time other than simultaneously with the wrongful act or negligence at issue….shall be used to contradict him as a witness in the case.” Thus, if an adjuster, attorney, or investigator obtains a statement from a plaintiff or other witness, if written or recorded on tape, that statement cannot be used at trial to contradict that witness when he inevitably changes his story two years later.

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In Harris v. Harrington, 180 Va. 520, 534, 25 S.E.2d 352, 358 (1940), the Supreme Court of Virginia explained the reason for the passage of this statute:

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