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Virginia Witnesses


You might be under the impression, like most people, that anyone can be a witness in a criminal case, and that all witnesses and what they have to say is treated equally. However, depending on who the witness is, their age, and other factors, that may not be the case. Unfortunately, some courts permit unacceptable witnesses that seriously jeopardize the defendant’s fair trial.

Children as Witnesses 

Deciding to call a child as a witness is a difficult decision because of the impact it could have on the young one, and because of the potential unreliability of their statements. Before a child is determined to be fit as a witness, they are interviewed to determine if they are competent to testify at trial. Virginia does not use a child’s age to determine competency; rather, the child’s intelligence and understanding of what is being asked of them is taken into full account and consideration. It is important for the child to understand what a lie is and also what is true, versus what is make-believe. Any reasons a child may have to distort the truth will impact the trustworthiness of their statement. Similarly, if the child is viewed to be under distress, the trustworthiness of their statements may be heavily questioned.

The Spouse of the Defendant 

As the Supreme Court of Virginia laid out in the Virginia Rules of Evidence, in most criminal cases a spouse is not required to testify as a witness against their husband or wife. Exceptions to this include if one party committed an offense against the other or the other’s property or attempted forgery of their spouse’s signature. If the case involves a criminal sexual assault or abuse of a child, a spouse may also be compelled to testify against their significant other. In general, a spouse choosing not to testify will not be used as evidence that the accused is guilty. On a similar note, any communication between the accused and their spouse is considered confidential and the defendant may refuse to disclose this information and may refuse other’s attempts to do the same.

Convicts and Inmates May or May Not Be Worthwhile to Put on the Stand 

Depending on the case, it may be worthwhile to have a witness take the stand who is also a prior convict. Anyone convicted of a felony or perjury is still allowed to be a witness in court, however, their conviction may be used as evidence as to how creditworthy their statements are. If the defendant, defendant’s lawyer, or prosecutor want to call on a witness who is currently an inmate at a state or local correctional facility then Virginia Code 19.2-269.1 states they must submit an application to the court for approval.

People Who May Be Exempt From Appearing on the Witness Stand 

It may be surprising to hear this, but people of faith and certain state emergency personnel may be exempt from testifying in a court of law in Virginia.

Contact an Experienced Virginia Attorney Today

An experienced Virginia criminal defense attorney will never permit unfit or unlawful witnesses from presenting incriminating information against their client. Call Simms Showers, LLP today at 703-997-782.



Disclaimer: This legal alert is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Caleb Kershner or Ben Mann at cak@simmsshowerslaw.com, wbm@simmsshowerslaw.com, or (703) 771-4671 for greater details concerning how this information may affect you.

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