Code of Virginia

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Code of Virginia
Title 19.2. Criminal Procedure
Chapter 16. Evidence and Witnesses
6/23/2021

Chapter 16. Evidence and Witnesses.

Article 1. In General.

§ 19.2-267. Provisions applicable to witnesses in criminal as well as civil cases; obligation to attend; summons.

Sections 8.01-396.1, 8.01-402, 8.01-405, 8.01-407, and 8.01-408 to 8.01-410, inclusive, shall apply to a criminal as well as a civil case in all respects, except that a witness in a criminal case shall be obliged to attend, and may be proceeded against for failing to do so, although there may not previously have been any payment, or tender to him of anything for attendance, mileage, or tolls. In a criminal case a summons for a witness may be issued by the attorney for the Commonwealth or other attorney charged with the responsibility for the prosecution of a violation of any ordinance or by the attorney for the defendant; however, any attorney who issues such a summons shall, at the time of the issuance, file with the clerk of the court the names and addresses of such witnesses except to the extent protected under § 19.2-11.2.

Code 1950, § 19.1-262; 1960, c. 366; 1962, c. 374; 1975, c. 495; 1977, c. 624; 1991, c. 38; 1994, c. 543; 2007, c. 552; 2008, c. 124; 2014, c. 744.

§ 19.2-267.1. Authority of law-enforcement officer to issue summons to witness; failure to appear.

A summons may be issued by a law-enforcement officer during the course of his immediate investigation of an alleged misdemeanor for which an arrest warrant is not required pursuant to § 19.2-81 to any person he reasonably believes was a witness to the offense. The summons shall command the person to appear and testify at the trial of any criminal charge brought against any person as the result of the offense.

A summons issued pursuant to this section shall have the same force as if issued by the court. The failure of any person so summoned to appear after receiving written notice of the date, time and place of the trial at least five days prior to the trial shall be punishable as contempt of the court in accordance with § 18.2-456 (5).

1983, c. 224.

§ 19.2-267.2. Response to subpoena for information stored in electronic format.

When a subpoena has been served pursuant to Rule 3A:12 of the Rules of the Supreme Court on a person who is not a party to the action requiring the production of information that is stored in an electronic format, the person shall produce a tangible copy of the information. If a tangible copy cannot be produced, the person shall permit the parties to review the information on a computer or by electronic means during normal business hours, provided that the information can be accessed and isolated. If a tangible copy cannot reasonably be produced and the information is commingled with information other than that requested in the subpoena and cannot reasonably be isolated, the person may file a motion for a protective order or motion to quash.

2002, c. 764.

§ 19.2-268. Right of accused to testify.

In any case of felony or misdemeanor, the accused may be sworn and examined in his own behalf, and if so sworn and examined, he shall be deemed to have waived his privilege of not giving evidence against himself, and shall be subject to cross-examination as any other witness; but his failure to testify shall create no presumption against him, nor be the subject of any comment before the court or jury by the prosecuting attorney.

Code 1950, § 19.1-264; 1960, c. 366; 1975, c. 495.

§ 19.2-268.1. Contradiction by prior inconsistent writing (Subdivision (b)(i) of Supreme Court Rule 2:613 derived in part from this section).

A witness in a criminal case may be cross-examined as to previous statements made by him in writing or reduced into writing, relative to the subject matter of the proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his 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, and he may be asked if he did not make a writing of the purport of the one to be offered to contradict him, and if he denies making it, or does not admit its execution, it shall then be shown to him, and if he admits its genuineness, he shall be allowed to make his own explanation of it; but it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make such use of it for the purpose of the trial as it may think best.

Code 1950, § 8-293; 1958, c. 380; 1960, c. 114; 1964, c. 356; 1977, c. 624.

§ 19.2-268.2. Recent complaint hearsay exception (Subdivision (23) of Supreme Court Rule 2:803 derived from this section).

Notwithstanding any other provision of law, in any prosecution for criminal sexual assault under Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, a violation of §§ 18.2-361, 18.2-366, 18.2-370 or § 18.2-370.1, the fact that the person injured made complaint of the offense recently after commission of the offense is admissible, not as independent evidence of the offense, but for the purpose of corroborating the testimony of the complaining witness.

1993, c. 592.

§ 19.2-268.3. Admissibility of statements by children in certain cases.

A. As used in this section, "offense against children" means a violation or an attempt to violate § 18.2-31, 18.2-32, or 18.2-35, subsection A of § 18.2-47, § 18.2-48, 18.2-51, 18.2-51.2, 18.2-51.6, 18.2-52, 18.2-54.1, 18.2-54.2, 18.2-61, 18.2-67.1, 18.2-67.2, or 18.2-67.3, subsection B of § 18.2-346 if punishable as a felony, § 18.2-355, 18.2-356, 18.2-357, or 18.2-357.1, subsection B of § 18.2-361, subsection B of § 18.2-366, § 18.2-370, 18.2-370.1, 18.2-371.1, 18.2-374.1, 18.2-374.1:1, 18.2-374.3, or 18.2-374.4, § 18.2-386.1 if punishable as a felony, or § 40.1-103.

B. An out-of-court statement made by a child who is under 13 years of age at the time of trial or hearing who is the alleged victim of an offense against children describing any act directed against the child relating to such alleged offense shall not be excluded as hearsay under Rule 2:802 of the Rules of Supreme Court of Virginia if both of the following apply:

1. The court finds, in a hearing conducted prior to a trial, that the time, content, and totality of circumstances surrounding the statement provide sufficient indicia of reliability so as to render it inherently trustworthy. In determining such trustworthiness, the court may consider, among other things, the following factors:

a. The child's personal knowledge of the event;

b. The age, maturity, and mental state of the child;

c. The credibility of the person testifying about the statement;

d. Any apparent motive the child may have to falsify or distort the event, including bias or coercion;

e. Whether the child was suffering pain or distress when making the statement; and

f. Whether extrinsic evidence exists to show the defendant's opportunity to commit the act; and

2. The child:

a. Testifies; or

b. Is declared by the court to be unavailable as a witness; when the child has been declared unavailable, such statement may be admitted pursuant to this section only if there is corroborative evidence of the act relating to an alleged offense against children.

C. At least 14 days prior to the commencement of the proceeding in which a statement will be offered as evidence, the party intending to offer the statement shall notify the opposing party, in writing, of the intent to offer the statement and shall provide or make available copies of the statement to be introduced.

D. This section shall not be construed to limit the admission of any statement offered under any other hearsay exception or applicable rule of evidence.

2016, cc. 542, 553.

§ 19.2-269. Convicts as witnesses (Supreme Court Rule 2:609 derived from this section).

A person convicted of a felony or perjury shall not be incompetent to testify, but the fact of conviction may be shown in evidence to affect his credit.

Code 1950, § 19.1-265; 1960, c. 366; 1975, c. 495.

§ 19.2-269.1. Inmates as witnesses in criminal cases.

Whenever the Commonwealth or a defendant in a criminal prosecution in any circuit court in this Commonwealth requires as a witness in his behalf, an inmate in a state or local correctional facility as defined in § 53.1-1, the court, on the application of such defendant or his attorney, or the attorney for the Commonwealth, shall issue an order to the Director of the Department of Corrections to deliver such witness to the sheriff of the jurisdiction of the court issuing the order. If authorized by the court, the clerk of the circuit court or a deputy clerk may issue these orders on behalf of the court. The sheriff shall go where such witness may then be and carry him to the court to testify as such witness, and after he has testified and been released as such witness, carry him back to the place whence he came, for all of which service the sheriff shall be paid out of the criminal expense funds in the state treasury such compensation as the court in which the case is pending may certify to be reasonable.

Code 1950, § 8-300; 1966, c. 227; 1974, cc. 44, 45; 1977, c. 624; 2002, cc. 515, 544.

§ 19.2-269.2. Nondisclosure of addresses or telephone numbers of crime victims and witnesses.

During any criminal proceeding, upon motion of the defendant or the attorney for the Commonwealth, a judge may prohibit testimony as to the current residential or business address, any telephone number, or email address of a victim or witness if the judge determines that this information is not material under the circumstances of the case.

1989, c. 170; 1994, cc. 845, 931; 2018, cc. 47, 83.

§ 19.2-270. When statement by accused as witness not received as evidence.

In a criminal prosecution, other than for perjury, or in an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination, in a criminal or civil action, unless such statement was made when examined as a witness in his own behalf.

Code 1950, § 19.1-267; 1960, c. 366; 1975, c. 495; 1988, c. 366.

§ 19.2-270.1. Use of photographs as evidence in certain larceny and burglary prosecutions.

In any prosecution for larceny under the provisions of §§ 18.2-95, 18.2-96 or § 18.2-98, or for shoplifting under the provisions of § 18.2-103, or for burglary under the provisions of §§ 18.2-89, 18.2-90, 18.2-91 or § 18.2-92, photographs of the goods, merchandise, money or securities alleged to have been taken or converted shall be deemed competent evidence of such goods, merchandise, money or securities and shall be admissible in any proceeding, hearing or trial of the case to the same extent as if such goods, merchandise, money or securities had been introduced as evidence. Such photographs shall bear a written description of the goods, merchandise, money or securities alleged to have been taken or converted, the name of the owner of such goods, merchandise, money or securities and the manner of the identification of same by such owner, or the name of the place wherein the alleged offense occurred, the name of the accused, the name of the arresting or investigating police officer or conservator of the peace, the date of the photograph and the name of the photographer. Such writing shall be made under oath by the arresting or investigating police officer or conservator of the peace, and the photographs identified by the signature of the photographer. Upon the filing of such photograph and writing with the police authority or court holding such goods and merchandise as evidence, such goods or merchandise shall be returned to their owner, or the proprietor or manager of the store or establishment wherein the alleged offense occurred.

1976, c. 577; 1985, c. 184; 1987, c. 493; 1995, c. 447.

§ 19.2-270.1:1. Computer and electronic data in obscenity, etc. cases; access to defendant.

When computer data or electronic data, stored in any form, the possession of which is otherwise unlawful, are seized as evidence in a criminal prosecution of any offense involving obscenity or child pornography, neither the original data nor a copy thereof shall be released to the defendant or his counsel, nor shall a court order the release of such evidence to the defendant or his counsel except as provided herein. The defendant and his counsel shall be allowed the reasonable opportunity to review such evidence in accordance with the rules of discovery. Upon a finding that the production of the original data or a copy thereof to counsel or his designee is necessary and material to the defense of the accused, the court may order such production only under terms that restrict access to specifically identified recipients, prohibit any duplication of the data beyond what is reasonably necessary for the purpose of the production, and require the return of the data to the law-enforcement agency maintaining custody or control of the seized data for appropriate disposition.

2006, c. 601.

§ 19.2-270.2. Disposition of money, securities or documents seized upon arrest, etc., and pertinent as evidence.

A. When in the course of investigation or arrest, the investigating or arresting officer shall seize or come into the possession of moneys, cash, or negotiable or nonnegotiable instruments or securities, hereinafter called "moneys or securities," taken or retained unlawfully from a financial institution or other person, and such moneys or securities, or a portion thereof, shall be pertinent evidence in a pending prosecution or appeal therefrom, the officer or agency having possession thereof, may retain, pending such prosecution or appeal thereof, sufficient of such moneys or securities as shall be necessary to prove the crime of grand larceny or other crimes requiring a specific amount in value. The court upon motion of the attorney for the Commonwealth and for good cause shown may order the release of all moneys or securities, subject to the provisions of this section. The remaining excess moneys or securities, if any, may be released to the owner thereof, upon proper receipt therefor, which release shall be with the consent of the attorney for the Commonwealth. The officer or agency authorizing such release shall make an appropriate record of such moneys or securities released, including designation or copying of serial numbers, and such record or receipt shall be admissible into evidence in any proceeding, hearing or trial of the case to the same extent as if such moneys or securities had been introduced. Such record or receipt shall contain the name of the financial institution or person from whom such moneys or securities were taken, the place from which taken, the name of the accused, and the name of the arresting officer or officers coming into initial possession of such moneys or securities. Pictures shall be taken of any instruments or securities and such pictures shall be attached to the receipt or record above and shall contain further, in the case of such copying, the date of the photograph and the name of the photographer.

B. When in the course of investigation or arrest, the investigating or arresting officer seizes or comes into the possession of moneys or securities under the provisions of this section, and such moneys or securities, or a portion thereof, are introduced as an exhibit in a prosecution or appeal therefrom, the court may, with the consent of the attorney for the Commonwealth, authorize the clerk of the circuit court, upon all appeal rights being exhausted, to deposit such moneys or cash in an interest-bearing account.

1980, c. 423; 1991, c. 680; 1995, c. 447.

§ 19.2-270.3. Admissible evidence as to identity of party presenting bad check, draft or order.

In any prosecution under § 18.2-181 or § 18.2-182 for the presentation of a bad check, draft or order, the following shall be admissible in any proceeding, hearing or trial of the case:

1. The unpaid or dishonored check, draft or order, bearing a notation thereon of the full name, residence address, home telephone number, and either the driver's license, social security or other governmentally issued identification number of the person who delivered such check, draft or order to the payee, the cashing party or its representative, and bearing the initials of the representative of the payee or cashing party to whom the check, draft or order was delivered, as evidence that such information was transcribed on such check, draft or order at the time of such delivery; or

2. A composite photograph of the check, draft or order, and of the person delivering such check, draft or order, and of other documentation identifying such person, such as a driver's license, social security card, or other governmentally issued identification card, taken together at the time the check, draft or order was delivered by such person to the payee, the cashing party or its representative.

If such evidence is introduced, it may invoke an inference sufficient for the trier of fact to find that the person whose identifying information appears on the check, draft or order was the person who delivered the check, draft or order in question to the payee, cashing party or its representative.

1981, c. 292; 1991, c. 633.

§ 19.2-270.4. When donation, destruction, or return of exhibits received in evidence authorized.

A. Except as provided in § 19.2-270.4:1 and unless objection with sufficient cause is made, the trial court in any criminal case may order the donation or destruction of any or all exhibits received in evidence during the course of the trial (i) in any misdemeanor case, at any time after the expiration of the time for filing an appeal from the final judgment of the court if no appeal is taken or if an appeal is taken, at any time after exhaustion of all appellate remedies and (ii) in any felony case, upon notice in the sentencing order or otherwise to the attorney for the Commonwealth, the defendant at his last known address, and attorney of record for the defendant in the case, after more than one year has expired from exhaustion of all appellate remedies, or, if no appeal is taken, after more than one year from the time for seeking appellate remedies has expired; and in the event the defendant is found not guilty by a court of law, the court may, upon entry of the final order, order the destruction, donation, or return of the exhibits; provided, however, if a petition for writ of habeas corpus is filed within such one-year period, then such order shall not be entered until exhaustion of such habeas corpus proceedings. Notwithstanding the foregoing, in all cases concluded prior to July 1, 2005, the notice requirement in this section shall not apply. The order of donation or destruction may require that photographs be made of all exhibits ordered to be donated or destroyed and that such photographs be appropriately labeled for future identification. In addition, the order shall state the nature of the exhibit subject to donation or destruction, identify the case in which such exhibit was received and from whom such exhibit was received, if known, and the manner by which the exhibit is to be destroyed or to whom donated. However, any money introduced into evidence, unless it is stolen from a third party, shall be subject to forfeiture by law-enforcement officials as otherwise provided by law, and if no forfeiture action is taken or if funds remain after any such forfeiture, the clerk shall escheat such funds as otherwise provided by law. No notice to the defendant shall be required in the case of exhibits the disposal or destruction of which is controlled by § 19.2-386.23 or 19.2-386.24, in any case in which such exhibits may be seized and forfeited to the Commonwealth under Chapter 22.1 (§ 19.2-386.1 et seq.) or Chapter 22.2 (§ 19.2-386.15 et seq.), or any other forfeiture provisions, or in any case where such exhibits are deemed contraband.

B. Except as provided in § 19.2-270.4:1, a circuit court for good cause shown, on notice to the attorney for the Commonwealth and any attorney for a defendant in the case, may order the return of any or all exhibits to the owners thereof, notwithstanding the pendency of any appeal or petition for a writ of habeas corpus. The order may be upon such conditions as the court deems appropriate for future identification and inclusion in the record of a case subject to retrial. In addition, the owner shall acknowledge in a sworn affidavit to be filed with the record of the case, that he has retaken possession of such exhibit or exhibits.

C. Any photographs taken pursuant to an order of donation or destruction or an order returning exhibits to the owners shall be retained with the record in the case and, if necessary, shall be admissible in any subsequent trial of the same cause, subject to all other rules of evidence.

D. Upon petition of any organization which is exempt from taxation under § 501(c) (3) of the Internal Revenue Code, the court in its sound discretion may order the donation of an exhibit to such charitable organization.

1984, c. 621; 1989, c. 481; 1994, c. 536; 2001, cc. 873, 874, 875; 2008, c. 805; 2010, cc. 352, 366, 454.

§ 19.2-270.4:1. Storage, preservation and retention of human biological evidence in felony cases.

A. Notwithstanding any provision of law or rule of court, upon motion of a person convicted of a felony but not sentenced to death or his attorney of record to the circuit court that entered the judgment for the offense, the court shall order the storage, preservation, and retention of specifically identified human biological evidence or representative samples collected or obtained in the case for a period of up to 15 years from the time of conviction, unless the court determines, in its discretion, that the evidence should be retained for a longer period of time. Upon the filing of such a motion, the defendant may request a hearing for the limited purpose of identifying the human biological evidence or representative samples that are to be stored in accordance with the provisions of this section. Upon the granting of the motion, the court shall order the clerk of the circuit court to transfer all such evidence to the Department of Forensic Science. The Department of Forensic Science shall store, preserve, and retain such evidence. If the evidence is not within the custody of the clerk at the time the order is entered, the court shall order the governmental entity having custody of the evidence to transfer such evidence to the Department of Forensic Science. Upon the entry of an order under this subsection, the court may upon motion or upon good cause shown, with notice to the convicted person, his attorney of record and the attorney for the Commonwealth, modify the original storage order, as it relates to time of storage of the evidence or samples, for a period of time greater than or less than that specified in the original order.

B. In the case of a person sentenced to death, the court that entered the judgment shall, in all cases, order any human biological evidence or representative samples to be transferred by the governmental entity having custody to the Department of Forensic Science. The Department of Forensic Science shall store, preserve, and retain such evidence until the judgment is executed. If the person sentenced to death has his sentence reduced, then such evidence shall be transferred from the Department to the original investigating law-enforcement agency for storage as provided in this section.

C. Pursuant to standards and guidelines established by the Department of Forensic Science, the order shall state the method of custody, transfer and return of any evidence to insure and protect the Commonwealth's interest in the integrity of the evidence. Pursuant to standards and guidelines established by the Department of Forensic Science, the Department of Forensic Science, local law-enforcement agency or other custodian of the evidence shall take all necessary steps to preserve, store, and retain the evidence and its chain of custody for the period of time specified.

D. In any proceeding under this section, the court, upon a finding that the physical evidence is of such a nature, size or quantity that storage, preservation or retention of all of the evidence is impractical, may order the storage of only representative samples of the evidence. The Department of Forensic Science shall take representative samples, cuttings or swabbings and retain them. The remaining evidence shall be handled according to § 19.2-270.4 or as otherwise provided for in the Code.

E. An action under this section or the performance of any attorney representing the petitioner under this section shall not form the basis for relief in any habeas corpus or appellate proceeding. Nothing in this section shall create any cause of action for damages against the Commonwealth, or any of its political subdivisions or officers, employees or agents of the Commonwealth or its political subdivisions.

2001, cc. 873, 874, 875; 2002, c. 832; 2005, cc. 868, 881.

§ 19.2-270.5. DNA profile admissible in criminal proceeding.

In any criminal proceeding, DNA (deoxyribonucleic acid) testing shall be deemed to be a reliable scientific technique and the evidence of a DNA profile comparison may be admitted to prove or disprove the identity of any person. This section shall not otherwise limit the introduction of any relevant evidence bearing upon any question at issue before the court, including the accuracy and reliability of the procedures employed in the collection and analysis of a particular DNA sample. The court shall, regardless of the results of the DNA analysis, if any, consider such other relevant evidence of the identity of the accused as shall be admissible in evidence.

At least twenty-one days prior to commencement of the proceeding in which the results of a DNA analysis will be offered as evidence, the party intending to offer the evidence shall notify the opposing party, in writing, of the intent to offer the analysis and shall provide or make available copies of the profiles and the report or statement to be introduced. In the event that such notice is not given, and the person proffers such evidence, then the court may in its discretion either allow the opposing party a continuance or, under appropriate circumstances, bar the person from presenting such evidence. The period of any such continuance shall not be counted for speedy trial purposes under § 19.2-243. If the opposing party intends to object to the admissibility of such evidence he shall give written notice of that fact and the basis for his objections at least ten days prior to commencement of the proceedings.

1990, c. 669; 1997, c. 315; 2002, cc. 627, 885.

§ 19.2-270.6. Evidence of abuse admissible in certain criminal trials (Supreme Court Rule 2:409 derived from this section).

In any criminal prosecution alleging personal injury or death, or the attempt to cause personal injury or death, relevant evidence of repeated physical and psychological abuse of the accused by the victim shall be admissible, subject to the general rules of evidence.

1993, c. 5.

§ 19.2-270.7. Determining decibel level of sound with proper equipment; certificate as to accuracy of equipment.

A law-enforcement officer may use equipment deemed proper pursuant to subsection C of § 2.2-1112 to determine the decibel level of any sound, including noise. The results of such determinations shall be accepted as prima facie evidence of the decibel level of the sound in any court or legal proceeding where the decibel level of the sound is at issue.

In any court or legal proceeding in which any question arises about the calibration or accuracy of such equipment used to determine the decibel level of sound, a certificate, or a true copy thereof, showing the calibration or testing for accuracy of the equipment, and when and by whom the calibration or test was made, shall be admissible as evidence of the facts therein stated. No calibration or testing of such equipment shall be valid for longer than 12 months.

2010, c. 558.

§ 19.2-271. Certain judicial officers incompetent to testify under certain circumstances; exceptions (Supreme Court Rule 2:605 derived from this section).

No judge shall be competent to testify in any criminal or civil proceeding as to any matter which came before him in the course of his official duties.

Except as otherwise provided in this section, no clerk of any court, magistrate, or other person having the power to issue warrants, shall be competent to testify in any criminal or civil proceeding as to any matter which came before him in the course of his official duties. Such person shall be competent to testify in any criminal proceeding wherein the defendant is charged with perjury or pursuant to the provisions of § 18.2-460 or in any proceeding authorized pursuant to § 19.2-353.3. Notwithstanding any other provision of this section, any judge, clerk of any court, magistrate, or other person having the power to issue warrants, who is the victim of a crime, shall not be incompetent solely because of his office to testify in any criminal or civil proceeding arising out of the crime.

Code 1950, §§ 19.1-267, 19.1-268; 1960, c. 366; 1975, c. 495; 1976, c. 269; 1989, c. 738; 1990, c. 602; 2015, c. 635.

§ 19.2-271.1. Competency of spouses to testify.

Persons married to each other shall be competent witnesses to testify for or against each other in criminal cases, except as otherwise provided.

Code 1950, § 8-287; 1977, c. 624; 2020, c. 900.

§ 19.2-271.2. Testimony of spouses in criminal cases (Subsection (b) of Supreme Court Rule 2:504 derived from this section).

In criminal cases, persons married to each other shall be allowed, and, subject to the rules of evidence governing other witnesses, may be compelled to testify in behalf of each other, but neither shall be compelled to be called as a witness against the other, except (i) in the case of a prosecution for an offense committed by one against the other, against a minor child of either, or against the property of either; (ii) in any case where either is charged with forgery of the name of the other or uttering or attempting to utter a writing bearing the allegedly forged signature of the other; or (iii) in any proceeding relating to a violation of the laws pertaining to criminal sexual assault (§§ 18.2-61 through 18.2-67.10), crimes against nature (§ 18.2-361) involving a minor as a victim and provided that the defendant and the victim are not married to each other, incest (§ 18.2-366), or abuse of children (§§ 18.2-370 through 18.2-371). The failure of either spouse to testify, however, shall create no presumption against the accused, nor be the subject of any comment before the court or jury by any attorney.

Except in the prosecution for a criminal offense as set forth in clause (i), (ii), or (iii), in any criminal proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between his spouse and him during their marriage, regardless of whether he is married to that spouse at the time he objects to disclosure. For the purposes of this section, "confidential communication" means a communication made privately by a person to his spouse that is not intended for disclosure to any other person.

Code 1950, § 8-288; 1950, p. 664; 1958, c. 231; 1960, c. 469; 1977, c. 624; 1988, c. 482; 1993, c. 637; 1996, c. 423; 2005, c. 809; 2020, c. 900.

§ 19.2-271.3. Communications between ministers of religion and persons they counsel or advise (Supreme Court Rule 2:503 derived in part from this section).

No regular minister, priest, rabbi or accredited practitioner over the age of eighteen years, of any religious organization or denomination usually referred to as a church, shall be required in giving testimony as a witness in any criminal action to disclose any information communicated to him by the accused in a confidential manner, properly entrusted to him in his professional capacity and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, where such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted.

1985, c. 570.

§ 19.2-271.4. Privileged communications by certain public safety personnel.

A. A person who is a member of a critical incident stress management or peer support team, established pursuant to subdivision A 13 of § 32.1-111.3, shall not disclose nor be compelled to testify regarding any information communicated to him by emergency medical services or public safety personnel who are the subjects of peer support services regarding a critical incident. Such information shall also be exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

B. A person whose communications are privileged under subsection A may waive the privilege.

C. The provisions of this section shall not apply when:

1. Criminal activity is revealed;

2. A member of a critical incident stress management or peer support team is a witness or a party to a critical incident that prompted the peer support services;

3. A member of a critical incident stress management or peer support team reveals the content of privileged information to prevent a crime against any other person or a threat to public safety;

4. The privileged information reveals intent to defraud or deceive the investigation into the critical incident;

5. A member of a critical incident stress management or peer support team reveals the content of privileged information to the employer of the emergency medical services or public safety personnel regarding criminal acts committed or information that would indicate that the emergency medical services or public safety personnel pose a threat to themselves or others; or

6. A member of a critical incident stress management or peer support team is not acting in the role of a member at the time of the communication.

D. For the purposes of this section, "critical incident" means an incident that induces an abnormally high level of negative emotions in response to a perceived loss of control. Such an incident is most often related to a threat to the well-being of the emergency medical services or public safety employee or to the well-being of another individual for whom such employee has some obligation of personal or professional concern.

2012, cc. 148, 320; 2017, c. 609.

§ 19.2-271.5. Protected information; newspersons engaged in journalism.

A. As used in this section, unless the context requires a different meaning:

"Journalism" means the gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.

"News organization" means any (i) newspaper or magazine issued at regular intervals and having a general circulation; (ii) recognized press association or wire service; (iii) licensed radio or television station that engages in journalism; or (iv) business that, by means of photographic or electronic media, engages in journalism and employs an editor overseeing the journalism function that follows commonly accepted journalistic practice as evidenced by (a) membership in a state-based journalism organization, including the Virginia Press Association and the Virginia Association of Broadcasters; (b) membership in a national journalism organization, including the National Press Club, the Society of Professional Journalists, and the Online News Association; (c) membership in a statewide or national wire news service, including the Capital News Service, The Associated Press, and Reuters; or (d) its continuous operation since 1994 or earlier.

"Newsperson" means any person who, for a substantial portion of his livelihood or for substantial financial gain, engages in journalism for a news organization. "Newsperson" includes any person supervising or assisting another person in engaging in journalism for a news organization.

"Protected information" means information identifying a source who provided information to a newsperson under a promise or agreement of confidentiality made by a news organization or newsperson while such news organization or newsperson was engaging in journalism.

B. Except as provided in subsection C, no newsperson shall be compelled by the Commonwealth or a locality in any criminal proceeding to testify about, disclose, or produce protected information. Any protected information obtained in violation of this subsection is inadmissible for any purpose in an administrative or criminal proceeding.

C. A court may compel a newsperson to testify about, disclose, or produce protected information only if the court finds, after notice and an opportunity to be heard by such newsperson, that:

1. The protected information is necessary to the proof of an issue material to an administrative or criminal proceeding;

2. The protected information is not obtainable from any alternative source;

3. The Commonwealth or locality exhausted all reasonable methods for obtaining the protected information from all relevant alternative sources, if applicable; and

4. There is an overriding public interest in the disclosure of the protected information, including preventing the imminent threat of bodily harm to or death of a person or ending actual bodily harm being inflicted upon a person.

D. The publication by a news organization or the dissemination by a newsperson of protected information obtained while engaging in journalism shall not constitute a waiver of the protection from compelled testimony, disclosure, and production provided by subsection B.

2020, c. 650.

Article 2. Witnesses from or for Another State.

§ 19.2-272. Definitions.

"Witness" as used in this article shall include a person whose testimony is desired in any proceeding or investigation by a grand jury or in a criminal action, prosecution or proceeding.

The word "state" shall include any territory of the United States and the District of Columbia.

The word "summons" shall include a subpoena (both subpoena ad testificandum and subpoena duces tecum), order or other notice requiring the appearance of a witness or production of documents.

Code 1950, § 19.1-269; 1960, c. 366; 1975, c. 495; 1988, c. 34.

§ 19.2-273. Certificate that witness is needed in another state; hearing.

If a judge of a court of record in any state which by its laws has made provisions for commanding persons within that state to attend and testify in this Commonwealth certifies under the seal of such court (1) that there is a criminal prosecution pending in such court or that a grand jury investigation has commenced or is about to commence, (2) that a person being within this Commonwealth is a material witness in such prosecution or grand jury investigation and (3) that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county or city in which such person is, such judge shall fix a time and place for hearing and shall make an order directing the witness to appear at a time and place certain for the hearing.

Code 1950, § 19.1-270; 1960, c. 366; 1975, c. 495.

§ 19.2-274. When court to order witness to attend.

If at such hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or grand jury investigation in the other state and that the laws of the state in which the prosecution is pending, or grand jury investigation has commenced or is about to commence (and of any other state through which the witness may be required to pass by ordinary course of travel) will give to him protection from arrest and the service of civil and criminal process, the judge shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein.

Code 1950, § 19.1-271; 1960, c. 366; 1975, c. 495.

§ 19.2-275. Arrest of witness.

If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure his attendance in the requesting state, such judge may, in lieu of notification of the hearing, direct that such witness be forthwith brought before him for the hearing; and the judge at the hearing being satisfied of the desirability of such custody and delivery, for which determination the certificate shall be prima facie proof of such desirability, may, in lieu of issuing subpoena or summons, order that the witness be forthwith taken into custody and delivered to an officer of the requesting state.

Code 1950, § 19.1-272; 1960, c. 366; 1975, c. 495.

§ 19.2-276. Penalty for failure to attend and testify.

If the witness who is summoned as above provided, after being paid or tendered by some properly authorized person reimbursement for reasonable travel and lodging expenses as provided in § 2.2-2823 for each day he is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a Virginia circuit court summons.

Code 1950, § 19.1-273; 1960, c. 366; 1975, c. 495; 1987, c. 125.

§ 19.2-277. Summoning witnesses in another state to testify in this Commonwealth.

If a person in any state which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this Commonwealth is a material witness in a prosecution pending in a court of record in this Commonwealth, or in a grand jury investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this Commonwealth to assure his attendance in this Commonwealth. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

Code 1950, § 19.1-274; 1960, c. 366; 1975, c. 495.

§ 19.2-278. Reimbursement for daily mileage to such witnesses; issuance of warrant necessary to make tender.

If the witness is summoned to attend and testify in this Commonwealth he shall receive such reimbursement for his daily mileage as prescribed in § 2.2-2823 for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this Commonwealth a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court.

The judge issuing the certificate prescribed in § 19.2-277 may, by order, direct the clerk of the court involved to issue such warrant or warrants payable out of the state treasury, as may be necessary to make the tender hereinabove prescribed; and after the entry of such order, such clerk, upon application of the attorney for the Commonwealth of the county or city involved, or of the accused, if certificate for the attendance of witness has been issued by such judge on his behalf as authorized by § 19.2-330, shall issue such warrant or warrants and deliver them to the said attorney for the Commonwealth, who shall, forthwith, cause such tender to be made. Upon issuance of any such warrant or warrants said clerk shall deliver a certified copy of the court's order to the Supreme Court, and the said warrant or warrants shall be paid out of the state treasury upon presentation.

Unless and until appropriate forms shall be obtained, such warrants may be issued on the regular forms provided for the payment of witness fees and allowances, but in such event the clerk issuing the same shall make a notation thereon that they were issued pursuant to the provisions of this section.

Code 1950, § 19.1-275; 1960, c. 366; 1972, c. 719; 1975, c. 495; 1976, c. 308; 1977, c. 483; 1978, c. 195.

§ 19.2-279. Penalty for failure of such witnesses to testify.

If such witness, after coming into this Commonwealth, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this Commonwealth.

Code 1950, § 19.1-276; 1960, c. 366; 1975, c. 495.

§ 19.2-280. Exemption of such witnesses from arrest or service of process.

If a person comes into this Commonwealth in obedience to a summons directing him to attend and testify in this Commonwealth he shall not while in this Commonwealth pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this Commonwealth under the summons.

If a person passes through this Commonwealth while going to another state in obedience to a summons to attend and testify in that state or while returning therefrom, he shall not while so passing through this Commonwealth be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his entrance into this Commonwealth under the summons.

Code 1950, § 19.1-277; 1960, c. 366; 1975, c. 495.

§ 19.2-281. Construction of article.

This article shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it.

Code 1950, § 19.1-278; 1960, c. 366; 1975, c. 495.

§ 19.2-282. How article cited.

This article may be cited as the "Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings."

Code 1950, § 19.1-279; 1960, c. 366; 1975, c. 495.