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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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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