Rule 2:613.PRIOR STATEMENTS OF WITNESS (Rule 2:613(a)(i) derived from Code § 8.01-403; Rule 2:613(b)(i) derived from Code §§ 8.01-404 and 19.2-268.1; and Rule 2:613(b)(ii) derived from Code § 8.01-404).

Rule 2:613 governs the mechanics of confronting a witness with something the witness said before trial. Subdivision (a) covers prior oral statements. Before questioning a witness about a supposed prior oral statement, the examiner must mention circumstances sufficient to designate the particular occasion and ask the witness whether the statement was made. Extrinsic evidence of a prior inconsistent oral statement is not admissible unless the witness first gets a chance to explain or deny it and the opposing party gets a chance to interrogate the witness about it — or the interests of justice otherwise require admission. That foundation requirement does not apply to admissions of a party opponent. The rule also bars extrinsic evidence of collateral statements, and requires that extrinsic evidence of a prior inconsistent statement come in only if the witness denies or does not remember making it.

Subdivision (b)(i) sets out the general procedure for contradicting a witness with a prior inconsistent writing. A witness may be cross-examined about a previous written statement without the writing first being shown to the witness. But if the examiner intends to contradict the witness with that writing, the witness’s attention must first be called to the occasion the writing supposedly relates to, and the witness must be asked whether such a writing was made. If the witness denies making it or does not admit its execution, the writing must then be shown to the witness; if the witness admits its genuineness, the witness must be allowed to explain it. The court retains authority to require production of the writing for inspection at any point and to control how it is used at trial.

Subdivision (b)(ii) creates a special protection in personal injury and wrongful death cases. There, no ex parte affidavit or written statement of a witness — other than a deposition taken after due notice — and no extrajudicial recording made other than simultaneously with the wrongful act or negligence at issue, may be used to contradict that witness. That protection does not, however, prohibit using such an affidavit or statement in a later action on an insurance policy based on a judgment recovered in the underlying personal injury or wrongful death case.