II. PRELIMINARY PROCEEDINGS
RULE 5.1 PRELIMINARY EXAMINATION
(a) Probable Cause Finding. If from the evidence it appears
that there is probable cause to believe that an offense has been
committed and that the defendant committed it, the magistrate shall
forthwith hold the defendant to answer in circuit court. The state
shall be represented by the prosecuting attorney at the preliminary
examination. Witnesses shall be examined and evidence introduced
for the state under the rules of evidence prevailing in criminal
trials generally, except that hearsay evidence may be received, if
there is a substantial basis for believing:
(1) That the source of the hearsay is credible;
(2) That there is a factual basis for the information
furnished; and
(3) That it would impose an unreasonable burden on one of the
parties or on a witness to require that the primary source of the
evidence be produced at the hearing.
The defendant may cross-examine adverse witnesses and may introduce
evidence. Objections to evidence on the ground that it was
acquired by unlawful means are not properly made at the preliminary
examination. Motions to suppress must be made to the trial court
as provided in Rule 12. On motion of either the state or the
defendant, witnesses shall be separated and not permitted in the
hearing room except when called to testify.
(b) Discharge of Defendant. If from the evidence it appears that there is no probable cause to believe that an offense has been
committed or that the defendant committed it, the magistrate shall
dismiss the complaint and discharge the defendant. The discharge
of the defendant shall not preclude the state from instituting a
subsequent prosecution for the same offense.
(c) Records.
(1) A magistrate shall record electronically every preliminary
examination conducted. If by reason of unavoidable cause it is
impossible to record all or part of a preliminary examination
electronically, a magistrate may proceed with the hearing but shall
make a written record of the failure to do so and of the cause
thereof.
A magnetic tape or other electronic recording medium on which
a preliminary examination is recorded shall be indexed and securely
preserved by the magistrate court clerk or, as assigned by the
clerk, by the magistrate assistant.
For evidentiary purposes, a duplicate of such electronic
recording prepared by the clerk of the magistrate or of the circuit
court shall be a "writing" or "recording" as those terms are
defined in Rule 1001 of the West Virginia Rules of Evidence, and
unless the duplicate is shown not to reflect the contents
accurately, it shall be treated as an original in the same manner
that data stored in a computer or similar data is regarded as an
"original" under such rule.
When requested by the state, the defendant, or any interested person, the clerk of the magistrate or of the circuit court shall
provide a duplicate copy of the tape or other electronic recording
medium of any preliminary examination held. Any defendant
requesting the copy who has not been permitted to proceed with
appointed counsel, any prosecutor who does not supply a blank tape,
and any other person shall pay to the magistrate court an amount
equal to the actual cost of the tape or other medium or the sum of
five dollars, whichever is greater.
Preparation of a transcript of the record or any designated
portions thereof shall be the responsibility of the party desiring
such transcript.
(2) If probable cause is found at the conclusion of a
preliminary examination in magistrate court: (i) the magistrate
clerk shall transmit to the prosecuting attorney a copy of the
criminal case history sheet; (ii) when the proceeding is recorded
electronically, the magistrate clerk shall transmit forthwith to
the clerk of the circuit court all papers and electronic records of
the proceeding; if for unavoidable cause the proceeding or part
thereof has not been recorded electronically, the magistrate shall
promptly make or cause to be made a summary written record of the
proceeding, and the magistrate clerk shall transmit forthwith to
the clerk of the circuit court such record and all other papers of
the proceeding. Once the records of the proceeding are transmitted
to the clerk of the circuit court, the felony charge shall remain
within the sole jurisdiction of the circuit court and shall not be remanded to the magistrate for any purpose.
(d) Juvenile Preliminary Hearings.
(1) Except for section (c)(2), the provisions of this rule
shall apply to hearings conducted pursuant to Chapter 49, Article
5, Section 9, of the West Virginia Code of 1931, as amended.
Certain terms used in this rule shall be read for the purposes of
this subdivision as follows: magistrate shall mean juvenile referee
or circuit judge; defendant shall mean juvenile respondent; offense
shall mean delinquent act. The clerk of the circuit court may
provide a copy of the tape or other electronic recording medium
only as permitted by Chapter 49, Article 5, Section 17 or by
Chapter 49, Article 7, Section 1 of the West Virginia Code of 1931,
as amended.
(2) At the conclusion of a juvenile preliminary hearing when
the proceeding is recorded electronically, the referee or judge
shall transmit forthwith to the clerk of the circuit court all
papers and electronic records of the proceeding; if for unavoidable
cause the proceeding or part thereof has not been recorded
electronically, the referee or judge shall promptly make or cause
to be made a summary written record of the proceeding, and shall
transmit forthwith to the clerk of the circuit court such record
and all other papers of the proceeding.
[Effective October 1, 1981; amended effective January 1, 1993;
September 1, 1995.]