Virginia Family Law Appeals

Text message is a “writing” under “Best-Evidence Rule” & other evidence rules, but if lost, can be described instead.

Virginia’s Rules of Evidence, specifically Rule 2:1001(1), define “writing” broadly and a text message clearly is one, even though no Virginia appeals court has considered the question before, Virginia’s Court of Appeals says in Dalton v. Commonwealth (March 31, 2015). Under the “Best Evidence Rule”, Rule 2:1002, a witness cannot testify about what the writing said, if the writing itself is available and can be produced instead, the Court confirmed. But electronic writings often will be “deleted, lost or purged”. So an explanation that the texts were on a discarded phone was a sufficient reason for them to be “lost” and “unattainable”, and so an oral description of them was properly admitted as evidence under Rules 2:1004(a) and (b).

The case also involved screenshots of other text messages. The Court did not rule on their admissibility because the state had conceded that admitting them was error. Instead, it said that any such error was harmless in the circumstances.

Mom "contributed to delinquency" of 1-year-old left 45 minutes in car outside store - Appeals Ct.

A mother who left her 1 to 2 year old child and dogs asleep in a car seat, with the motor running, while she shopped for 45 minutes or longer, has her “contributing to the delinquency of a minor” misdemeanor conviction upheld by the Court of Appeals in Miller v. Commonwealth (March 31, 2015). She asked a store employee to watch the car –- she said “car”, not “child” -- and he and another employee tried, but could not do it for that long and do their jobs too. As the Court sees it, asking “a complete stranger” to watch the child hardly helps and probably makes things worse. The jury reasonably decided that the mother knew, or should know, that she caused the child “a substantial risk of harm”.

I agree. But “contributing to the delinquency of a minor”? Delinquency is usually understood as being a criminal, or can also mean seriously failing in one’s duties, seriously antisocial conduct (of a kind which usually would be a crime in an adult), or being a deadbeat, according to Black’s Law Dictionary (7^th Ed.), which also defines “contributing to the delinquency” as encouraging a minor’s shoplifting, vandalism or perjury.” How was a one-year-old going to become a delinquent? Being kidnapped by slavers and sold into prostitution? Perhaps. But the real answer is in the wording of the “contributing” statute, which in the odd manner of the 1950 Code of Virginia, covers a multitude of sins in a single Code Section, amended ten times in 65 years:

§ 18.2-371. Causing or encouraging acts rendering children delinquent, abused, etc.; penalty; abandoned infant.

Any person 18 years of age or older, including the parent of any child, who (i) willfully contributes to, encourages, or causes any act, omission, or condition that renders a child delinquent, in need of services, in need of supervision, or abused or neglected as defined in § 16.1-228 or (ii) engages in consensual sexual intercourse or anal intercourse with or performs cunnilingus, fellatio, or anilingus upon or by a child 15 or older not his spouse, child, or grandchild is guilty of a Class 1 misdemeanor. This section shall not be construed as repealing, modifying, or in any way affecting §§ 18.2-18, 18.2-19, 18.2-61, 18.2-63, and 18.2-347.

If the prosecution under this section is based solely on the accused parent having left the child at a hospital or rescue squad, it shall be an affirmative defense to prosecution of a parent under this section that such parent safely delivered the child to a hospital that provides 24-hour emergency services or to an attended rescue squad that employs emergency medical technicians, within the first 14 days of the child's life. In order for the affirmative defense to apply, the child shall be delivered in a manner reasonably calculated to ensure the child's safety.

(Code 1950, § 18.1-14; 1960, c. 358; 1975, cc. 14, 15; 1981, cc. 397, 568; 1990, c. 797; 1991, c. 295; 1993, c. 411; 2003, cc. 816, 822; 2006, c. 935; 2008, cc. 174, 206; 2014, c. 794.)