ANALYSIS OF MAY 26, 2009 CAV OPINIONS
 
[Posted May 26, 2009] There is a common subtext among the two published opinions handed down today by the Court of Appeals of Virginia. That subtext, in my humble opinion, is that if the law hadn’t justified these two affirmances, someone would have had to do something to ensure the affirmances anyway.
 
Domestic relations
Last week, in Doering v. Doering, the Court of Appeals considered a property settlement agreement that the trial judge rejected when fashioning the final divorce decree. This week, we get another one, in Bailey v. Bailey. Husband was a former naval officer who suffered from “chronic and severe schizoaffective psychosis.”  He was discharged and spent some time in a psychiatric hospital. While on a furlough from that facility, his wife presented him with a document and told him to sign it.
 
The document was titled, “Contract of Marriage.” This is remarkable, considering the couple had already been married for 12 years by this point. But the contents were even more remarkable: The parties agreed that wife would get all the property and husband would get all the bills. She got a power of attorney to handle all the couple’s finances, and he promised to pay her support if they got divorced. Wife told husband that if he didn’t sign, he couldn’t come home. He signed, and went back to the hospital later that day. From the limited recitation we see in today’s opinion, there were lots of goodies in the agreement for wife, and virtually none for husband, except that part about getting to go home again.
 
In the ensuing divorce proceeding, husband’s psychiatrist testified that he wasn’t competent to sign the agreement. The trial court agreed, assigning greater weight to this doctor’s testimony than to the wife’s evidence of husband’s competency. On appeal, the CAV affords “the highest degree of appellate deference” to this finding, so wife can win only if the evidence rises to a level at which no reasonable factfinder would rule in favor of husband.
 
It ain’t hap’nin’ here. The court finds that the trial court had ample factual backing to rule as it did. The one key point that’s worth mentioning here is that in the trial court, there is a presumption of competency, and the burden is on the party asserting lack of competency to prove his or her assertion. Once the trial court makes such a finding, an appellant has a hard task to overcome it, since (as always) appellate court views the evidence in the light most favorable to the winner below.
 
Criminal law
There’s an important distinction between the admissibility of expert testimony in criminal and civil proceedings. In civil cases, by statute, an expert can base her opinion on matters that aren’t in evidence – hearsay, even – without any problem. She can be required to disclose on cross-examination the foundations for her opinions, although most opponents won’t want to do that as a matter of tactics. But in criminal cases, the common law still prevails, and an expert has to restrict her opinions to those matters that are in evidence (usually by the posing of hypothetical questions) and that she personally observed. The criminal provisions get appellate attention today in Jones v. Commonwealth.
 
Jones was convicted of second-degree murder in the brutal 1983 beating death of his girlfriend. He had evaded prosecution for 24 years living under an assumed name, before being caught and brought to court. From the description of the evidence in today’s opinion, the Commonwealth had plenty of evidence that Jones beat the victim senseless; she died a week later. The key appellate issue is whether the medical examiner based her opinions as to the cause of death on matters outside evidence and her own experience. Specifically, the examiner reached her conclusions based in part on her review of the victim’s medical records, which showed things like the time of admission to the hospital, and the patient’s condition at that time.
 
Jones objected to this testimony at trial, but the trial judge allowed the opinions. When pressed on the point, the expert asserted that she would have come to the same conclusions even without the medical records, as the victim’s condition, readily observable during the autopsy, would have given her the same information. This turns out to be the key circumstance justifying affirmance; the CAV rules that the examiner’s personal observations during the autopsy furnish a satisfactory foundation for the opinions.
 
In affirming, the court points to a 1984 decision by the Supreme Court of Virginia, affirming a conviction that was based in part on parallel evidence. The court today is careful to point out that it is not creating a rule in criminal cases that mirrors that in civil cases. Experts in criminal cases must still base their opinions on their own observations (or upon facts introduced in evidence). But where the expert’s review of inadmissible matters is redundant of her personal observations, the court won’t hold that against the prosecution.