Virginia Court of Appeals Reaffirms Contemporaneous Objection Rule

In an unpublished decision, the Virginia Court of Appeals today reaffirmed the continuing role of the contemporaneous objection rule in Virginia.

In Ellis v. Commonwealth, Ellis appealed his criminal convictions on the ground that the trial court erred by admitting 911 tapes that were unduly prejudicial. At trial, Ellis made hearsay and relevance objections, but did not raise the issue of unfair prejudice.

The court began by noting that "[o]bjecting to evidence as unduly prejudicial is different from attacking it as logically irrelevant or, even if relevant, nonetheless barred by the hearsay rule." Accordingly, "[w]hile perhaps related, these three concepts are far from synonymous."

In light of these differences, by failing to raise the issue of unfair prejudice at trial, "Ellis never gave the trial court an opportunity to decide whether — even with multiple cautionary instructions, even though relevant, and even if not barred by the hearsay rule — the 911 calls should still be excluded from evidence as unduly prejudicial." As a result, the contemporaneous objection rule prevented the court from considering the issue and Ellis' conviction was affirmed.