Contradictory Evidence Rules in Virginia

As of 01 July 2012, Virginia got a brand spanking new set of evidentiary rules. The rules are numbered as the federal rules of evidence, but supposedly reflect Virginia's previously common law rules of evidence. They do not seem to do this. Of particular interest is this section:

Rule 2:102 SCOPE AND CONSTRUCTION OF THESE RULES
These Rules state the law of evidence in Virginia. They are adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules. As to matters not covered by these Rules, the existing law remains in effect. Where no rule is set out on a particular topic, adoption of the Rules shall have no effect on current law or practice on that topic.

Now, that's an interesting, and contradictory, rule for construction. We are told that these rules are exactly the same as the common law rules which have developed over the last couple centuries. This would seem to indicate that the old case law still applies. However, we are then immediately told that if these rules don't cover something the existing law remains in effect. This would seem to indicate that these rules abrogate old case law.

It's an important issue, because as you read through the new rules it becomes obvious that whoever put them together was more familiar with the federal rules than he was with the nuances of Virginia's common law rules of evidence. There are places throughout where the new rules do not track with the prior case law. For instance, everyone who practices in Virginia knows that the spousal privilege in Virginia could not be asserted by the defendant; it had to be asserted by the spouse his or herself. It was a bad rule (for all sorts of reasons), but it was the rule. Yet, if you look at Rule 2:504(B)(2) it states this:

2. Except in the prosecution for a criminal offense as set forth in subsections (B)(i), (ii) or (iii) above, in any criminal proceeding, a person has a privilege to refuse to disclose, and to prevent anyone else from disclosing, any confidential communication between such person and his or her spouse during their marriage, regardless of whether the person is married to that spouse at the time the person objects to disclosure.

A plain reading of that seems to indicate that the defendant can now assert the spousal privilege. However, if you were constrained by Virginia's prior case law on this matter, you could read that to mean that the spouse called to testify can assert the privilege not to testify and as an aspect of that assertion foreclose any hearsay or other means by which that spousal communication might have come into evidence.

So what do we do? Do we contort 2:504(B)(2) to match existing case law or do we act as though the new rule abrogate the old rule?

Personally, my opinion is that the new rules will reign supreme; we may well tip-toe around the issue for a while, but in the end the rules will trump case law. The reason we really needed to adopt something along the model of the federal rules of evidence is that this is what we have all been arguing for years anyway. No one goes to law school and learns common law evidence anymore. Thus, when the last 30+ years of law students have come out they have been making arguments which track with the federal rules, not Virginia's common law. Then, they would get tripped up on things which were in Virginia's common law which were not in the federal rules. As a young lawyer, this happened to me personally when a long time practitioner pulled out the res gestae hearsay exception on me one day and I was clueless as to what he was arguing; I am sure it has happened to any number of other attorneys as well. What will happen now is that the vast majority of us will continue to argue using plain language while the new graduates will come in talking numberese ("It's a 504 violation judge") and the real sharp knives will come out in the capital murder cases where every comma in the new rules will be parsed. The new rules will prove to be an unopposable tide washing away everything that stands before them.