Legal Notices

Renewed Motion to Strike a Must to Avoid Waiver

On January 15, 2010, in Murillo-Rodriguez v. Commonwealth, Record No. 090510 (and reportedly also in an unpublished order in Zein v. Hopler, Record No. 090038), the Supreme Court of Virginia clearly held for the first time since the 1992 amendment to Code §8.01-384 that, in order to preserve a sufficiency of the evidence challenge for appeal, where the defendant has moved to strike at the close of the plaintiff’s or prosecution’s evidence, the defendant must also move to strike at the close of all the evidence or make a motion to set aside the verdict on the grounds of insufficiency.

The Court held that when a defendant introduces evidence of any sort following the first motion to strike, that act is a waiver of the initial motion to strike.  Any subsequent insufficiency challenge is a different motion - one that challenges the entirety of the evidence.  The opinion describes this as a bright-line rule that admits no exceptions based on the limited nature or scope of the evidence the defendant introduces.   This is a criminal case, but it cites both civil and criminal precedents, and without doubt it applies in the civil context as well.