X. GENERAL PROVISIONS
RULE 46. RELEASE FROM CUSTODY
(a) Release Prior to Trial. Eligibility for release prior to trial shall be in accordance with Chapter 62, Article 1C, Section 1 of the West Virginia Code of 1931, as amended.
(b) Release During Trial. A person released before trial shall continue on release during trial under the same terms and conditions as were previously imposed unless the court determines that other terms and conditions or termination of release is necessary to assure such person's presence during the trial or to assure that his or her conduct will not obstruct the orderly and expeditious progress of the trial.
(c) Pending Sentence and Notice of Appeal. Eligibility for release pending sentence or pending notice of intent to appeal or expiration of the time allowed for filing notice of appeal shall be in accordance with Chapter 62, Article 1C, Section 1(b), of the West Virginia Code of 1931, as amended. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant. The burden of establishing eligibility for bail under this subsection rests with the defendant.
(d) Justification of Sureties. Every surety, except a surety which is approved as provided by law, shall justify by affidavit and may be required to describe in the affidavit the property by which the surety proposes to justify and the encumbrances thereon, the number and amount of other bonds and undertakings for bail entered into by the surety, and remaining undischarged, and all the other liabilities of the surety. No bond shall be approved unless the surety thereon appears to be qualified. Any surety or bond required by this rule may be approved by any magistrate or circuit judge permitted to accept the same.
(e) Forfeiture.
(1) Declaration. If there is a breach of condition of a bond, the circuit court shall declare a forfeiture of the bail.
(2) Setting Aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.
(3) Enforcement. When a forfeiture has not been set aside, the circuit court shall on motion enter a judgment of default, and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction and venue of the circuit court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and notice of the motion, and the hearing thereon, shall comply with Chapter 62, Article 1C, Section 9 of the West Virginia Code of 1931, as amended.
(4) Remission. After entry of such judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this subdivision.
(f) Exoneration. When the condition of the bond has been satisfied or the forfeiture thereof has been set aside or remitted, the court shall exonerate the obligors and release any bail, and if the bail be in a form other than a recognizance, the deposit shall be returned to the person who made the same. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.
(g) Supervision of Detention Pending Trial. The court shall exercise supervision over the detention of defendants and witnesses within the county pending trial for the purpose of eliminating all unnecessary detention. The attorney for the state shall make a biweekly report to the court listing each defendant and witness who has been held in custody pending indictment, arraignment or trial for a period in excess of 10 days. As to each witness so listed, the attorney for the state shall make a statement of the reasons why such witness should not be released with or without the taking of a deposition pursuant to Rule 15(a). As to each defendant so listed, the attorney for the state shall make a statement of the reasons why the defendant is still held in custody.
(h) Bail Determination Hearings. Upon motion of the defendant for release pursuant to subdivisions (a), (b) or (c) of this rule, the court or magistrate exercising jurisdiction over the case shall immediately order a hearing to determine the defendant's eligibility for bail or release or to determine the amount of bail.
(1) Time of Hearing. The hearing shall be held within a reasonable time not later than five days after the filing of the motion, but:
(A) With the consent of the defendant and upon a showing of cause, the hearing may be continued one or more times; and
(B) In the absence of the defendant, the hearing may be continued only upon a showing that extraordinary circumstances exist and that the delay is indispensable to the interests of justice.
(2) Procedures. The magistrate or circuit court shall issue process necessary to summon witnesses within the state for either the attorney for the state or the defendant. Both the attorney for the state and the defendant may offer evidence in their behalf. Each witness, including a defendant testifying in his or her own behalf, shall testify under oath or affirmation and may be cross-examined. The magistrate or circuit court may make any order with respect to the conduct of the hearing that such magistrate or judge could make at the trial of a criminal case.
(3) Testimony of Defendant. A defendant who testifies at the hearing may nonetheless decline to testify at trial, in which case his or her testimony at the hearing is not admissible in evidence. If the defendant testifies at trial, his or her testimony at the hearing is admissible in evidence to the extent permitted by law.
(4) Evidence. Objections to evidence on the ground that it was acquired by unlawful means are not properly made by any hearing under this subsection. Hearsay evidence may be received, if there is a substantial basis for believing:
(A) That the source of hearsay is credible;
(B) That there is a factual basis for the information furnished; and
(C) 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.
(5) Finding and Disposition. The magistrate or circuit court shall expeditiously upon receipt of all the evidence make a ruling on defendant's motion and shall, in addition, find the facts specially and state separately its conclusions of law thereon. The findings shall be in writing. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.
(i) Production of Statements.
(1) In General. Rule 26.2(a)-(d) and (f) applies at a detention hearing, unless the court, for good cause shown, rules otherwise in a particular case.
(2) Sanctions for Failure to Produce Statement. If a party elects not to comply with an order under Rule 26.2(a) to deliver a statement to the moving party, at the detention hearing the court may not consider the testimony of a witness whose statement is withheld.

[Effective October 1, 1981; amended effective February 1, 1985; September 1, 1995.]