Out-of-court statement can be used as admission but not for impeachment

In Gray v. Rhoads, the Virginia Supreme Court in an opinion by Justice Kinser concluded that trial court erred in excluding the prior statements of the defendants pursuant to Va. Code 8.01-404, which says: "This section is subject to the qualification, that in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness and no extrajudicial recording 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, shall be used to contradict him as a witness in the case." The Court reasoned that a plaintiff can use the defendant's statements as substantive admissions, without running afoul of the prohibition against the use of the statements to "contradict" the defendant "as a witness."

Senior Justice Stephenson dissented, joined by Justice Koontz. The dissent makes the reasonable point that the plaintiff's purpose in using the defendants' statements was to contradict their testimony.

The outcome of this case seems correct but strange. The majority notes that it is appropriate for a trial court to offer a limiting instruction when admitting impeachment evidence, that the evidence should not be considered proof of what happened but is admitted only as it affects credibility. Perhaps, from the letter of the statute, on remand the trial court should instruct the jury that the statements of the officers are offered as proof of what happened, but should not be considered as evidence that they are not telling the truth in their testimony as witnesses at the trial.