Here is Kyle McNew on Colas v. Tyree.

On January 26th, the Supreme Court of Virginia issued its decision in Colas v. Tyree.  This was a tragic case where a police officer shot and killed Mr. Tyree, who was in the midst of a severe mental health emergency.  The shot followed a multi-hour attempt by the police to deescalate the situation and to disarm Mr. Tyree, who had what is described as a military-style knife with a long blade that was sharp on one edge and serrated on the other.  The officer was called as a witness by the Estate and testified that he shot Mr. Tyree because he believed another officer was in imminent danger of death or serious bodily injury.  We call that the “defense of others” defense, and it’s the same analysis as self-defense.  

Based on the facts recited by the Court, this was a plausible defense.  But the jury saw it differently and returned a verdict for Mr. Tyree’s estate on its battery claim against the shooting officer.  There is a lot going on in the Court’s 4-3 decision between Justice McCullough’s opinion for the majority and Justice Russell’s dissent.  Brother Emmert comprehensively describes the to and fro over at his spot on this internet.  But I want to focus on the legal point that is the heart of the case.

All Virginia lawyers generally know the adverse party witness rule:  if you call an adverse party in your own case, you are bound by the adverse party’s testimony.  We also know the rule is not absolute:  you are not bound by the adverse party’s testimony if it is contradicted by other evidence that you adduce in your case or if it is inherently improbable or incredible.  The problem is that this exception isn’t very predictable in application.  One judge’s contradiction might be another’s immaterial inconsistency, so most lawyers are terrified of the adverse party witness rule.  

The Colas majority opinion, finding that the Estate was bound by the officer’s testimony and thus reversing the jury’s verdict in favor of the Estate, does nothing to ease those concerns, and one aspect really jumped out at me.  In describing the contours of the rule, the Court states:

If testimony from an adverse party witness is uncontradicted on a specific factual point, the plaintiff is bound by it. In addition, we have repeatedly rejected the notion that the “positive testimony” of an adverse party witness – specific factual testimony – can be overcome by other evidence, such as inferences drawn from primary facts, or “negative” testimony from a witness.

This was a record-screeching-to-halt passage for me.  I read this to say that inferences drawn from circumstantial evidence, no matter how strong the inference might be, can never create the contradiction necessary to escape the adverse party witness rule.  For example, if the adverse party testifies in your case that the light was green you are bound by that testimony even if there is a mountain of circumstantial evidence from which one could infer that the light was red.  Only another witness directly testifying that the light was red would create the contradiction with the adverse party’s testimony necessary to escape the rule. 

That did not sit right with me.  I could have sworn that Virginia law generally treated inferences drawn from circumstantial evidence as having equal weight as direct or positive evidence.  And sure enough, there it is right there in the Model Jury Instructions:  

Any fact that may be proved by direct evidence may be proved by circumstantial evidence; that is, you may draw all reasonable and legitimate inferences and deductions from the evidence.  

VMJI (Civil) 2.100.  Flip the page to the Practice Commentary and we see it in even starker terms:

There is no distinction in the law between the weight or value to be given to either direct or circumstantial evidence:  circumstantial evidence, if convincing, is entitled to the same weight as direct evidence.

Id. (citing Commonwealth v. Hudson, 265 Va. 505, 512 (2003) and Britt v. Commonwealth, 276 Va. 569, 573 (2008)).

But now we know that apparently isn’t always true.  Circumstantial evidence has the same weight as direct evidence except, apparently, if the direct evidence comes from the adverse party in your own case.  And I respectfully submit that makes no sense.  If ever we are going to elevate the weight of one type of evidence over another, why would the adverse party’s presumably self-serving testimony be what we give greater weight?  This strikes me as a huge doctrinal inconsistency, and certainly a trap for the unwary.