Rule 2:613 - Prior Statements of Witness (Rule 2:613(a)(i) derived from Code Section 8.01-403; Rule 2:613(b)(i) derived from Code Sections 8.01-404 and 19.2-268.1; and Rule 2:613(b)(ii) derived from Code Section 8.01-404)(a)Examining witness concerning prior oral statement.(i) Prior oral statements of witnesses. In examining a witness in any civil or criminal case concerning a prior oral statement, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and the witness must be asked whether the statement was made. (ii) Extrinsic evidence of prior inconsistent oral statement of witness. Extrinsic evidence of a prior inconsistent oral statement by a witness is not admissible unless the witness is first given an opportunity to explain or deny the statement and the opposing party is given an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party opponent. Extrinsic evidence of a witness' prior inconsistent statement is not admissible unless the witness denies or does not remember the prior inconsistent statement. Extrinsic evidence of collateral statements is not admissible.
(b)Contradiction by prior inconsistent writing. (i) General rule. In any civil or criminal case, a witness may be cross-examined as to previous statements made by the witness in writing or reduced to writing, relating to the subject matter of the action, without such writing being shown to the witness; but if the intent is to contradict such witness by the writing, his or her 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; the witness may be asked whether he or she made a writing of the purport of the one to be offered, and if the witness denies making it, or does not admit its execution, it must then be shown to the witness, and if the witness admits its genuineness, the witness must be allowed to make an explanation of it; but the court may, at any time during the trial, require the production of the writing for its inspection, and the court may then make such use of it for the purpose of the trial as it may think best.(ii) Personal Injury or Wrongful Death Cases. Notwithstanding the general principles stated in this subpart (b), in an action to recover for personal injury or wrongful death, 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, may be used to contradict such witness in the case. Nothing in this subdivision may be construed to prohibit the use of any such ex parte affidavit or statement in an action on an insurance based upon a judgment recovered in a personal injury or wrongful death case.Adopted and promulgated by Order dated June 1, 2012; effective 7/1/2012; adopted and promulgated by order dated June 1, 2012; effective 7/1/2012; amended by order dated September 3, 2020, effective 9/3/2020; amended by order dated November 13, 2020, effective 7/1/2021.