It’s the most wonderful time of the year . . . for new opinions from the Supreme Court of Virginia.

Although our criminal practitioners will certainly want to read these, they contain helpful information for our trial lawyers more broadly:

First up is Baez v. Commonwealth, in which our Supreme Court addresses whether video evidence was properly authenticated (in addition to ruling on hearsay and Confrontation Clause arguments). 

• The witness who authenticated the video footage in question only observed a portion of the events depicted, but the Supreme Court still determined that the entire video was properly admitted.
• Takeaways: To admit video evidence, you do not necessarily need the creator of the video. Videos are generally admissible under either the “independent silent witness” theory or to illustrate a witness’s testimony. Be sure to read the opinion if you need a refresher on the requirements to authenticate these.

Next up is Commonwealth v. Carolino. Although a criminal case, it should serve as a reminder to all readers of how hard it is to be a trial lawyer.

• Counsel objected to the Commonwealth’s questioning on multiple bases in the trial court. Despite their best efforts, counsel did not explicitly state a basis for an objection that later gained traction on appeal.
• The Court of Appeals, sitting en banc, had first determined that there was reversible error… but the SCV found the precise error wasn’t properly preserved.
• Takeaways: If you know in advance that something is going to be an issue, write out ALL possible objections rather than relying on your memory in the heat of the moment. But that is easier said than done, particularly in a fast-paced trial where the unexpected frequently occurs. Even if you don’t know the technical terms (here, the issue was “improper and prejudicial use of collateral propensity evidence” to rebut a witness’s testimony!), do your best to describe what seems wrong in your own words, consider a motion to set aside, and call your favorite appellate lawyer.
• The Supreme Court also found that the argument was not encompassed by the assignment of error. It’s hard to get right, but so important not to get wrong.

Next is Josephson v. Commonwealth, a fugitive disentitlement doctrine case (a legal theory which says that someone who is a fugitive from justice may have their appeal dismissed).

• Full disclosure: I am not entirely unbiased, as I have a pending Petition before the SCV on a similar issue, but in my case the defendant was in a local jail when his appeal was dismissed by the Court of Appeals. Stay tuned for February’s writ panel and read the opinion for details.
• Takeaways: Although the Supreme Court affirmed the judgment, it agreed that the Court of Appeals had gone rogue in dismissing the appeal a mere two days after the Commonwealth asked it to… and without giving opposing counsel an opportunity to respond. This one speaks for itself.

Lastly, do you love probation violations, retroactivity arguments, and jurisdictional questions? Are you a criminal lawyer who is forced to deal with these issues anyways? Read Johnson-Bey v. Commonwealth.

• Takeaways: Justice Kelsey included a final footnote, writing that the SCV has not yet decided whether “a revocation order entered after the effective date of the 2021 statutory amendments can carry forward an indeterminate period of suspension decreed in previous sentencing orders.”
• If you know you may have this issue in advance, start strategizing early to make sure it’s preserved. You just might land yourself a case in the Supreme Court!

In conclusion, I am thankful for the appellate courts, which are truly the gift that keeps on giving this holiday season.

Have questions or want to strategize these issues? Give me a call.