One of the nastier waiver traps in Virginia practice is the Drinkard-Nuckols rule–that is, the principle that if you unsuccessfully object to a piece of evidence, you waive that objection if you introduce evidence dealing with the same subject in your case in chief. (You can still introduce the evidence on cross-examination or rebuttal.)
This rule creates an obvious dilemma, especially for a plaintiff: If you lose a motion in limine to exclude evidence, do you then pretend the evidence doesn’t exist and let your opponent stun the jury with it? Do you hit it on rebuttal” Or do you engage it head on, and worry about appellate consequences later?
And then . . . just what, exactly, is it that we can’t introduce again? The case law alternates between formulations like “evidence of the same character” and “evidence dealing with the same subject” and evidence “similar to that to which the objection applies.” These are not self-defining terms. Every piece of evidence at trial “deal[s] with the same subject” to some extent. Otherwise, it would be irrelevant.
For what it’s worth, I follow two principles when working through Drinkard-Nuckols problems. First, I remember that as Kyle McNew says, every preservation-of-error question is really a case-strategy question, balancing trial and appellate interests. Each additional objection or argument that shores up your position on appeal comes at the cost of potentially ticking off the judge or jury. So the whole game is about tradeoffs; there are no perfect solutions, and we are just trying to maximize the value of our position. Generally speaking, winning with the jury adds a lot of value to a position. And generally speaking, decisions excluding evidence will be reviewed on an abuse-of-discretion standard. So as far as tradeoffs go . . .
Second, I like then-Judge Kelsey’s opinion in Isaac v. Commonwealth, 58 Va. App. 255 (2011), which points out that the two justifications for the Drinkard-Nuckols rule are harmless error and waiver. That helps a lot with the whole question of what we’re allowed to discuss! For example, assume that you are right, and the trial judge erred by denying your motion to exclude evidence. Would the material that you are about to introduce render that error harmless? Alternatively, would it seem to the neutral observer that by introducing this evidence, you are intentionally abandoning your earlier objection? If the answer to either question is “yes,” then you have a Drinkard-Nuckols problem.