RULES OF EVIDENCE
ARTICLE I. GENERAL PROVISIONS
RULE 101. SCOPE
These rules govern proceedings in the courts of this State to
the extent and with the exceptions stated in Rule 1101. Rules of
evidence set forth in any West Virginia statute not in conflict
with any of these rules or any other rules adopted by the Supreme
Court of Appeals shall be deemed to be in effect until superseded
by rule or decision of the Supreme Court of Appeals.
[Effective February 1, 1985.]
ARTICLE I. GENERAL PROVISIONS
RULE 102. PURPOSE AND CONSTRUCTION
These rules shall be construed to secure fairness in
administration, elimination of unjustifiable expense and delay, and
promotion of growth and development of the law of evidence to the
end that the truth may be ascertained and proceedings justly
determined.
[Effective February 1, 1985.]
ARTICLE I. GENERAL PROVISIONS
RULE 103. RULINGS ON EVIDENCE
(a) Effect of Erroneous Ruling. Error may not be predicated
upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence,
a timely objection or motion to strike appears of record, stating
the specific ground of objection, if the specific ground was not
apparent from the context; or
(2) Offer of Proof. In case the ruling is one excluding
evidence, the substance of the evidence was made known to the court
by offer or was apparent from the context within which questions
were asked.
(b) Record of Offer and Ruling. The court may add any other
or further statement which shows the character of the evidence, the
form in which it was offered, the objection made, and the ruling
thereon. It may direct the making of an offer in question and
answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be
conducted, to the extent practicable, so as to prevent inadmissible
evidence from being suggested to the jury by any means, such as
making statements or offers of proof or asking questions in the
hearing of the jury. Where practicable, these matters should be
determined upon a pretrial motion in limine.
(d) Plain Error. Nothing in this rule precludes taking notice
of plain errors affecting substantial rights although they were not
brought to the attention of the court.
[Effective February 1, 1985.]
ARTICLE I. GENERAL PROVISIONS
RULE 104. PRELIMINARY QUESTIONS
(a) Questions of Admissibility Generally. Preliminary
questions concerning the qualification of a person to be a witness,
the existence of a privilege, or the admissibility of evidence
shall be determined by the court, subject to the provisions of
subdivision (b). In making its determination it is not bound by
the rules of evidence except those with respect to privileges.
(b) Relevancy Conditioned on Fact. When the relevancy of
evidence depends upon the fulfillment of a condition of fact, the
court shall admit it upon, or subject to, the introduction of
evidence sufficient to support a finding of the fulfillment of the
condition.
(c) Hearing of Jury. Hearings on the admissibility of
confessions and evidence seized as a result of a search and seizure
shall in all cases be conducted out of the hearing of the jury.
Hearings on other preliminary matters shall be so conducted when
the interests of justice require, or when an accused is a witness
and so requests.
(d) Testimony by Accused. The accused does not, by testifying
upon a preliminary matter, become subject to cross-examination as
to other issues in the case.
(e) Weight and Credibility. This rule does not limit the
right of a party to introduce before the jury evidence relevant to weight or credibility.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE I. GENERAL PROVISIONS
RULE 105. LIMITED ADMISSIBILITY
When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.
[Effective February 1, 1985.]
ARTICLE I. GENERAL PROVISIONS
RULE 106. REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS
When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the
introduction at that time of any other part or any other writing or
recorded statement which ought in fairness to be considered
contemporaneously with it.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE II. JUDICIAL NOTICE
RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS
(a) Scope of Rule. This rule governs only judicial notice of
adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice,
whether requested or not.
(d) When Mandatory. A court shall take judicial notice if
requested by a party and supplied with the necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely
request to an opportunity to be heard as to the propriety of taking
judicial notice and the tenor of the matter noticed. In the absence
of prior notification, the request may be made after judicial
notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at
any stage of the proceeding.
(g) Instructing Jury. In a civil action or proceeding, the
court shall instruct the jury to accept as conclusive any fact
judicially noticed. In a criminal case, the court shall instruct
the jury that it may, but is not required to, accept as conclusive
any fact judicially noticed.
[Effective February 1, 1985.]
ARTICLE II. JUDICIAL NOTICE
RULE 202. JUDICIAL NOTICE OF LAW
(a) When Mandatory. A court shall take judicial notice
without request by a party of the common law, constitutions, and
public statutes in force in every state, territory, and
jurisdiction of the United States.
(b) When Discretionary. A court may take judicial notice
without request by a party of (1) private acts and resolutions of
the Congress of the United States and of the legislature of West
Virginia and ordinances and regulations of governmental
subdivisions or agencies of West Virginia and the United States;
and (2) the laws of foreign countries.
(c) When Conditionally Mandatory. A court shall take judicial
notice of each matter specified in paragraph (b) of this rule if a
party requests it and (1) furnishes the court sufficient
information to enable it properly to comply with the request and
(2) has given each adverse party such notice as the court may
require to enable the adverse party to prepare to meet the request.
[Effective February 1, 1985.]
ARTICLE III. PRESUMPTIONS
RULE 301. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS
In all civil actions and proceedings not otherwise provided
for by statute or by these rules, a presumption imposes on the
party against whom it is directed the burden of going forward with
evidence to rebut or meet the presumption, but does not shift to
such party the burden of proof in the sense of the risk of
nonpersuasion, which remains throughout the trial upon the party on
whom it was originally cast.
[Effective February 1, 1985.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 401. DEFINITION OF "RELEVANT EVIDENCE"
"Relevant evidence" means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.
[Effective February 1, 1985.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT
EVIDENCE INADMISSIBLE
All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by the
Constitution of the State of West Virginia, by these rules, or by other rules adopted by the Supreme Court of Appeals. Evidence
which is not relevant is not admissible.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 403. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE,
CONFUSION, OR WASTE OF TIME
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
[Effective February 1, 1985.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT;
EXCEPTIONS; OTHER CRIMES
(a) Character Evidence Generally. Evidence of a person's
character or a trait of character is not admissible for the purpose
of proving that he or she acted in conformity therewith on a
particular occasion, except:
(1) Character of Accused. Evidence of a pertinent trait of
his character offered by an accused, or by the prosecutor to rebut the same;
(2) Character of Victim of a Crime Other than a Sexual Conduct
Crime. Evidence of a pertinent trait of character of the victim of
the crime, other than a crime consisting of sexual misconduct,
offered by an accused, or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the victim offered
by the prosecution in a homicide case to rebut evidence that the
victim was the first aggressor;
(3) Character of Victim of a Sexual Offense. In a case
charging criminal sexual misconduct, evidence of the victim's past
sexual conduct with the defendant as provided for in W.Va. Code
§61-8B-11; and as to the victim's prior sexual conduct with persons
other than the defendant, where the court determines at a hearing
out of the presence of the jury that such evidence is specifically
related to the act or acts for which the defendant is charged and
is necessary to prevent manifest injustice.
(4) Character of Witness. Evidence of the character of a
witness, as provided in Rules 607, 608, and 609.
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show that he or she acted in conformity
therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident, provided
that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during
trial if the court excuses pretrial notice on good cause shown, of
the general nature of any such evidence it intends to introduce at
trial.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 405. METHODS OF PROVING CHARACTER
(a) Reputation or Opinion. In all cases in which evidence of
character or a trait of character of a person is admissible, proof
may be made by testimony as to reputation or by testimony in the
form of an opinion. On cross-examination, inquiry is allowable
into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which
character or a trait of character of a person is an essential
element of a charge, claim, or defense, proof may also be made of
specific instances of that person's conduct.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 406. HABIT; ROUTINE PRACTICE
Evidence of the habit of a person or of the routine practice
of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct
of the person or organization on a particular occasion was in
conformity with the habit or routine practice.
[Effective February 1, 1985.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 407. SUBSEQUENT REMEDIAL MEASURES
When, after an event, measures are taken which, if taken
previously, would have made the event less likely to occur,
evidence of the subsequent measures is not admissible to prove
negligence or culpable conduct in connection with the event. This
rule does not require the exclusion of evidence of subsequent
measures when offered for another purpose, such as proving
ownership, control, or feasibility of precautionary measures, if
controverted, or impeachment.
[Effective February 1, 1985.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 408. COMPROMISE AND OFFERS TO COMPROMISE
Evidence of (1) furnishing or offering or promising to
furnish, or (2) accepting or offering or promising to accept a
valuable consideration in compromising or attempting to compromise
a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its
amount. Evidence of conduct or statements made in compromise
negotiations is likewise not admissible. This rule does not
require the exclusion of any evidence otherwise discoverable merely
because it is presented in the course of compromise negotiations.
This rule also does not require exclusion when the evidence is
offered for another purpose, such as proving bias or prejudice of
a witness, negativing a contention of undue delay, or proving an
effort to obstruct a criminal investigation or prosecution.
[Effective February 1, 1985.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 409. PAYMENT OF MEDICAL AND SIMILAR EXPENSES
Evidence of furnishing or offering or promising to pay
medical, hospital, or similar expenses occasioned by an injury is
not admissible to prove liability for the injury.
[Effective February 1, 1985.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 410. INADMISSIBILITY OF PLEA DISCUSSIONS AND RELATED STATEMENTS
Except as otherwise provided in this rule, evidence of the
following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the
plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under
Rule 11 of the West Virginia Rules of Criminal Procedure or
comparable state or federal procedure regarding either of the
foregoing pleas; or
(4) any statement made in the course of plea discussions with
an attorney for the prosecuting authority which does not result in
a plea of guilty or which results in a plea of guilty later
withdrawn.
However, such a statement is admissible (i) in any proceeding
wherein another statement made in the course of the same plea or
plea discussions has been introduced and the statement ought in
fairness be considered contemporaneously with it, or (ii) in a
criminal proceeding for perjury or false statement if the statement
was made by the defendant under oath, on the record, and in the
presence of counsel.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 411. LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted
negligently or otherwise wrongfully. This rule does not require
the exclusion of evidence of insurance against liability when
offered for another purpose, such as proof of agency, ownership, or
control, if controverted, or bias or prejudice of a witness.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE V. PRIVILEGES
RULE 501. GENERAL RULE
The privilege of a witness, person, government, state, or
political subdivision thereof shall be governed by the principles
of the common law except as modified by the Constitution of the
United States or West Virginia, statute or court rule.
[Effective February 1, 1985.]
ARTICLE VI. WITNESSES
RULE 601. GENERAL RULE OF COMPETENCY
Every person is competent to be a witness except as otherwise
provided for by statute or these rules.
[Effective February 1, 1985.]
ARTICLE VI. WITNESSES
RULE 602. LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has
personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the witness' own testimony.
This rule is subject to the provisions of Rule 703 relating to
opinion testimony by expert witnesses.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VI. WITNESSES
RULE 603. OATH OR AFFIRMATION
Before testifying, every witness shall be required to declare
that he or she will testify truthfully, by oath or affirmation
administered in a form calculated to awaken the witness' conscience
and impress his or her mind with the duty to do so.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VI. WITNESSES
RULE 604. INTERPRETERS
An interpreter is subject to the provisions of these rules
relating to qualification as an expert and the administration of an
oath or affirmation to make a true translation.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VI. WITNESSES
RULE 605. COMPETENCY OF JUDGE AS WITNESS
The judge presiding at the trial shall not testify in that
trial as a witness. No objection need be made in order to preserve
the point.
[Effective February 1, 1985.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
ARTICLE VI. WITNESSES
RULE 606. COMPETENCY OF JUROR AS WITNESS
(a) A member of the jury shall not testify as a witness before
that jury in the trial of the case in which the juror is sitting.
No objection need be made in order to preserve the point.
(b) Inquiry Into Validity of Verdict or Indictment. Upon an
inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the
course of the jury's deliberations or to the effect of anything
upon that or any other juror's mind or emotions as influencing the
juror to assent to or dissent from the verdict or indictment or
concerning the juror's mental processes in connection therewith,
except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's
attention or whether any outside influence was improperly brought
to bear upon any juror. Nor may a juror's affidavit or evidence of
any statement by the juror concerning a matter about which the
juror would be precluded from testifying be received for these
purposes.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VI. WITNESSES
RULE 607. WHO MAY IMPEACH
The credibility of a witness may be attacked and impeached by
any party, including the party calling the witness.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VI. WITNESSES
RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS
(a) Opinion and Reputation Evidence of Character. The
credibility of a witness may be attacked or supported by evidence
in the form of opinion or reputation, but subject to these
limitations: (1) the evidence may refer only to character for
truthfulness or untruthfulness; and (2) evidence of truthful
character is admissible only after the character of the witness for
truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the
conduct of a witness, for the purpose of attacking or supporting
the witness' credibility, other than conviction of crime as
provided in Rule 609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on
cross-examination of a witness other than the accused (1)
concerning the witness' character for truthfulness or
untruthfulness, or (2) concerning the character for truthfulness or
untruthfulness of another witness as to which character the witness
being cross-examined has testified.
The giving of testimony under this rule by a witness does not
operate as a waiver of the witness' privilege against
self-incrimination when examined with respect to matters which
relate only to credibility.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VI. WITNESSES
RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
(a) General Rule.
(1) Criminal Defendants. For the purpose of attacking the
credibility of a witness accused in a criminal case, evidence that the accused has been convicted of a crime shall be admitted but
only if the crime involved perjury or false swearing.
(2) All Witnesses Other Than Criminal Defendants. For the
purpose of attacking the credibility of a witness other than the
accused
(A) evidence that the witness has been convicted of a crime
shall be admitted, subject to Rule 403, if the crime was punishable
by death or imprisonment in excess of one year under the law under
which the witness was convicted, and
(B) evidence that the witness has been convicted of a crime
shall be admitted if it involved dishonesty or false statement,
regardless of the punishment.
(b) Time Limit. Evidence of a conviction under this rule is
not admissible if a period of more than ten years has elapsed since
the date of the conviction or of the release of the witness from
the confinement imposed for that conviction, whichever is the later
date, unless the court determines, in the interests of justice,
that the probative value of the conviction supported by specific
facts and circumstances substantially outweighs its prejudicial
effect. However, evidence of a conviction more than ten years old,
as calculated herein, is not admissible unless the proponent gives
to the adverse party sufficient advance written notice of intent to
use such evidence to provide the adverse party with a fair
opportunity to contest the use of such evidence.
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under
this rule if (1) the conviction has been the subject of a pardon,
annulment, certificate of rehabilitation, or other equivalent
procedure based on a finding of the rehabilitation of the person
convicted, and that person has not been convicted of a subsequent
crime which was punishable by death or imprisonment in excess of
one year, or (2) the conviction has been the subject of a pardon,
annulment, or other equivalent procedure based on a finding of
innocence.
(d) Juvenile Adjudications. Evidence of juvenile
adjudications is generally not admissible under this rule. The
court may, however, in a criminal case allow evidence of a juvenile
adjudication of a witness other than the accused if conviction of
the offense would be admissible to attack the credibility of an
adult and the court is satisfied that admission in evidence is
necessary for a fair determination of the issue of guilt or
innocence.
(e) Pendency of Appeal. The pendency of an appeal therefrom
does not render evidence of a conviction inadmissible. Evidence of
the pendency of an appeal is admissible.
[Effective February 1, 1985; amended effective July 1, 1994;
October 1, 1994.]
ARTICLE VI. WITNESSES
RULE 610. RELIGIOUS BELIEFS OR OPINIONS
Evidence of the beliefs or opinions of a witness on matters of
religion is not admissible for the purpose of showing that by
reason of their nature the witness' credibility is impaired or
enhanced.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VI. WITNESSES
RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION
(a) Control by Court. The court shall exercise reasonable
control over the mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment.
(b) Scope of Cross-Examination.
(1) Party Witness. A party may be cross-examined on any
matter relevant to any issue in the case, including credibility.
In the interest of justice, the judge may limit cross-examination
with respect to matters not testified to on direct examination.
(2) Non-Party Witnesses. Cross-examination should be limited
to the subject matter of the direct examination and matters
affecting the credibility of the non-party witness. The court may, in the exercise of discretion, permit inquiry into additional
matters as if on direct examination.
(c) Leading Questions. Leading questions should not be used
on the direct examination of a witness except as may be necessary
to develop the witness' testimony. Ordinarily, leading questions
should be permitted on cross- examination. When a party calls a
hostile witness, an adverse party, a witness identified with an
adverse party, or an expert witness, interrogation may be by
leading questions.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VI. WITNESSES
RULE 612. WRITING OR OBJECT USED TO REFRESH MEMORY
(a) While Testifying. If, while testifying, a witness uses a
writing or object to refresh memory, an adverse party is entitled
to have the writing or object produced at the trial, hearing, or
deposition in which the witness is testifying.
(b) Before Testifying. If, before testifying, a witness uses
a writing or object to refresh memory for the purpose of testifying
and the court in its discretion determines that the interests of
justice so require, an adverse party is entitled to have the
writing or object produced, if practicable, at the trial, hearing,
or deposition in which the witness is testifying.
(c) Terms and Conditions of Production and Use. A party
entitled to have a writing or object produced under this rule is
entitled to inspect it, to cross-examine the witness thereon, and
to introduce in evidence those portions which relate to the
testimony of the witness. If production of the writing or object
at the trial, hearing, or deposition is impracticable, the court
may order it made available for inspection. If it is claimed that
the writing or object contains matters not related to the subject
matter of the testimony, the court shall examine the writing or
object in camera, excise any portions not so related, and order
delivery of the remainder to the party entitled thereto. Any
portion withheld over objections shall be preserved and made
available to the appellate court in the event of an appeal. If a
writing or object is not produced, made available for inspection,
or delivered pursuant to order under this rule, the court shall
make any order justice requires, except that in criminal cases when
the prosecution elects not to comply, the order shall be one
striking the testimony or, if the court in its discretion
determines that the interests of justice so require, declaring a
mistrial.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VI. WITNESSES
RULE 613. PRIOR STATEMENTS OF WITNESSES
(a) Examining Witness Concerning Prior Statement. In
examining a witness concerning a prior statement made by the
witness, whether written or not, the statement need not be shown
nor its contents disclosed to the witness at that time, but on
request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent Statement of
Witness. Extrinsic evidence of a prior inconsistent statement by
a witness is not admissible unless the witness is afforded an
opportunity to explain or deny the same and the opposite party is
afforded an opportunity to interrogate the witness thereon, or the
interests of justice otherwise require. This provision does not
apply to admissions of a party-opponent as defined in Rule
801(d)(2).
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VI. WITNESSES
RULE 614. CALLING AND INTERROGATION OF WITNESSES BY COURT
(a) Calling by Court. The court may, on its own motion or at
the suggestion of a party, call witnesses, and all parties are
entitled to cross-examine witnesses thus called.
(b) Interrogation by Court. The court may interrogate
witnesses, whether called by itself or by a party, but in jury
trials the court's interrogation shall be impartial so as not to
prejudice the parties.
(c) Objections. Objections to the calling of witnesses by the
court or to interrogation by it may be made at the time or at the
next available opportunity when the jury is not present.
[Effective February 1, 1985.]
ARTICLE VI. WITNESSES
RULE 615. EXCLUSION OF WITNESS
At the request of a party the court shall order witnesses
excluded so that they cannot hear the testimony of other witnesses,
and it may make the order of its own motion. This rule does not
authorize exclusion of (1) a party who is a natural person, or (2)
an officer or employee of a party which is not a natural person
designated as its representative by its attorney, or (3) a person
whose presence is shown by a party to be essential to the
presentation of the party's cause.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VII. OPINION AND EXPERT TESTIMONY
RULE 701. OPINION TESTIMONY BY LAY WITNESSES
If the witness is not testifying as an expert, his or her
testimony in the form of opinions or inferences is limited to those
opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VII. OPINION AND EXPERT TESTIMONY
RULE 702. TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training, or education may testify thereto in
the form of an opinion or otherwise.
[Effective February 1, 1985.]
ARTICLE VII. OPINION AND EXPERT TESTIMONY
RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or made
known to the expert at or before the hearing. If of a type
reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or data
need not be admissible in evidence.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VII. OPINION AND EXPERT TESTIMONY
RULE 704. OPINION ON ULTIMATE ISSUE
Testimony in the form of an opinion or inference otherwise
admissible is not objectionable solely because it embraces an
ultimate issue to be decided by the trier of fact.
[Effective February 1, 1985; amended effective October 16, 1985.]
ARTICLE VII. OPINION AND EXPERT TESTIMONY
RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION
The expert may testify in terms of opinion or inference and
give reasons therefor without first testifying to the underlying
facts or data, unless the court requires otherwise. The expert may
in any event be required to disclose the underlying facts or data
on cross-examination.
[Effective February 1, 1985; amended effective January 1, 1995.]
ARTICLE VII. OPINION AND EXPERT TESTIMONY
RULE 706. COURT APPOINTED EXPERTS
(a) Appointment. The court may on its own motion or on the
motion of any party enter an order to show cause why expert
witnesses should not be appointed and may request the parties to
submit nominations. The court may appoint any expert witnesses
agreed upon by the parties and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the
court unless he or she consents to act. A witness so appointed
shall be informed of his or her duties by the court in writing, a
copy of which shall be filed with the clerk, or at a conference in
which the parties shall have opportunity to participate. A witness
so appointed shall advise the parties of his or her findings, if
any; the witness' deposition may be taken by any party; and the
witness may be called to testify by the court or any party. The
witness shall be subject to cross-examination by each party,
including a party calling the witness.
(b) Compensation. Expert witnesses so appointed are entitled
to reasonable compensation in whatever sum the court may allow.
The compensation thus fixed is payable from funds which may be
provided by law in criminal cases and civil actions and proceedings
involving just compensation under the Fifth Amendment. In other
civil actions and proceedings the compensation shall be paid by the
parties in such proportion and at such time as the court directs,
and thereafter charged in like manner as other costs.
(c) Disclosure of Appointment. The jury shall in no way be
advised that the court appointed the witness, absent an agreement
to so advise by all parties.
(d) Parties' Experts of Own Selection. Nothing in this rule
limits the parties in calling expert witnesses of their own
selection.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VIII. HEARSAY
RULE 801. DEFINITIONS
The following definitions apply under this article:
(a) Statement. A "statement" is (1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended
by the person as an assertion.
(b) Declarant. A "declarant" is a person who makes a
statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
(d) Statements Which Are Not Hearsay. A statement is not
hearsay if--
(1) Prior Statement by Witness. The declarant testifies at
the trial or hearing and is subject to cross-examination concerning
the statement, and the statement is (A) inconsistent with the
declarant's testimony, and was given under oath subject to the
penalty of perjury at a trial, hearing, or other proceeding, or in
a deposition, or (B) consistent with the declarant's testimony and
is offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive, or
(C) one of identification of a person made after perceiving the
person; or
(2) Admission by Party-Opponent. The statement is offered
against a party and is (A) the party's own statement, in either an
individual or a representative capacity, or (B) a statement of
which the party has manifested an adoption or belief in its truth,
or (C) a statement by a person authorized by the party to make a
statement concerning the subject, or (D) a statement by the party's
agent or servant concerning a matter within the scope of the agency
or employment, made during the existence of the relationship, or
(E) a statement by a co-conspirator of a party during the course
and in furtherance of the conspiracy.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VIII. HEARSAY
RULE 802. HEARSAY RULE
Hearsay is not admissible except as provided by these rules.
[Effective February 1, 1985.]
ARTICLE VIII. HEARSAY
RULE 803. HEARSAY EXCEPTIONS: AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or
explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling
event or condition made while the declarant was under the stress of
excitement caused by the event or condition.
(3) Then Existing Mental, Emotional, or Physical Condition.
A statement of the declarant's then existing state of mind,
emotion, sensation, or physical condition (such as intent, plan,
motive, design, mental feeling, pain, and bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant's will.
(4) Statements for Purposes of Medical Diagnosis or Treatment.
Statements made for purposes of medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to
diagnosis or treatment.
(5) Recorded Recollection. A memorandum or record concerning
a matter about which a witness once had knowledge but now has
insufficient recollection to enable him or her to testify fully and
accurately, shown to have been made or adopted by the witness when
the matter was fresh in the witness' memory and to reflect that
knowledge correctly. If admitted, the memorandum or record may be
read into evidence but may not itself be received as an exhibit
unless offered by an adverse party.
(6) Records of Regularly Conducted Activity. A memorandum,
report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by, or
from information transmitted by, a person with knowledge, if kept
in the course of a regularly conducted business activity, and if it
was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by
the testimony of the custodian or other qualified witness, unless
the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term "business"
as used in this paragraph includes business, institution,
association, profession, occupation, and calling of every kind,
whether or not conducted for profit.
(7) Absence of Entry in Records Kept in Accordance With the
Provisions of Paragraph (6). Evidence that a matter is not
included in the memoranda reports, records, or data compilations,
in any form, kept in accordance with the provisions of paragraph
(6), to prove the nonoccurrence or nonexistence of the matter, if
the matter was of a kind of which a memorandum, report, record, or
data compilation was regularly made and preserved, unless the
sources of information or other circumstances indicate lack of
trustworthiness.
(8) Public Records and Reports. Records, reports, statements,
or data compilations, in any form, of public offices or agencies,
setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding, however, in criminal
cases matters observed by police officers and other law enforcement
personnel, or (C) in civil actions and proceedings and against the
state in criminal cases, factual findings resulting from an
investigation made pursuant to authority granted by law, unless the
sources of information or other circumstances indicate lack of
trustworthiness.
(9) Records of Vital Statistics. Records or data
compilations, in any form, of births, fetal deaths, deaths, or
marriages, if the report thereof was made to a public office
pursuant to requirements of law.
(10) Absence of Public Record or Entry. To prove the absence
of a record, report, statement, or data compilation, in any form,
or the nonoccurrence or nonexistence of a matter of which a record,
report, statement, or data compilation, in any form, was regularly
made and preserved by a public office or agency, evidence in the
form of a certification in accordance with Rule 902, or testimony,
that diligent search failed to disclose the record, report,
statement, or data compilation, or entry.
(11) Records of Religious Organizations. Statements of
births, marriages, divorces, deaths, legitimacy, ancestry,
relationship by blood or marriage, or other similar facts of
personal or family history, contained in a regularly kept record of
a religious organization.
(12) Marriage, Baptismal, and Similar Certificates.
Statements of fact contained in a certificate that the maker
performed a marriage or other ceremony or administered a sacrament,
made by a clergyman, public official, or other person authorized by
the rules or practices of a religious organization or by law to
perform the act certified, and purporting to have been issued at
the time of the act or within a reasonable time thereafter.
(13) Family Records. Statements of fact concerning personal
or family history contained in family Bibles, genealogies, charts,
engravings on rings, inscriptions on family portraits, engravings
on urns, crypts, or tombstones, or the like.
(14) Records of Documents Affecting an Interest in Property.
The record of a document purporting to establish or affect an
interest in property, as proof of the content of the original
recorded document and its execution and delivery by each person by
whom it purports to have been executed, if the record is a record
of a public office and an applicable statute authorizes the
recording of documents of that kind in that office.
(15) Statements in Documents Affecting an Interest in
Property. A statement contained in a document purporting to
establish or affect an interest in property if the matter stated
was relevant to the purpose of the document, unless dealings with
the property since the document was made have been inconsistent
with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. Statements in a document in existence twenty years or more the authenticity of
which is established.
(17) Market Reports, Commercial Publications. Market
quotations, tabulations, lists, directories, or other published
compilations generally used and relied upon by the public or by
persons in particular occupations.
(18) Learned Treatises. To the extent called to the attention
of an expert witness upon cross-examination or relied upon by the
expert witness in direct examination, statements contained in
published treatises, periodicals, or pamphlets on a subject of
history, medicine, or other science or art, established as a
reliable authority by the testimony or admission of the witness or
by other expert testimony or by judicial notice. If admitted, the
statements may be read into evidence but may not be received as
exhibits.
(19) Reputation Concerning Personal or Family History.
Reputation among members of a person's family by blood, adoption,
or marriage, or among a person's associates, or in the community,
concerning a person's birth, adoption, marriage, divorce, death,
legitimacy, relationship by blood, adoption, or marriage, ancestry,
or other similar fact of his personal or family history.
(20) Reputation Concerning Boundaries or General History.
Reputation in a community, arising before the controversy, as to
boundaries of or customs affecting lands in the community, and
reputation as to events of general history important to the community or state or nation in which located.
(21) Reputation as to Character. Reputation of a person's
character among associates or in the community.
(22) Judgment of Previous Conviction. Evidence of a final
judgment, entered after a trial or upon a plea of guilty (but not
upon a plea of nolo contendere), adjudging a person guilty of a
crime punishable by death or imprisonment in excess of one year, to
prove any fact essential to sustain the judgment, but not
including, when offered by the state in a criminal prosecution for
purposes other than impeachment, judgments against persons other
than the accused. The pendency of an appeal may be shown but does
not affect admissibility.
(23) Judgment as to Personal, Family, or General History, or
Boundaries. Judgments as proof of matters of personal, family, or
general history, or boundaries, essential to the judgment, if the
same would be provable by evidence of reputation.
(24) Other Exceptions. A statement not specifically covered
by any of the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point for
which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be served by
admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it
makes known to the adverse party, sufficiently in advance of the
trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's intention to
offer the statement and the particulars of it, including the name
and address of the declarant.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VIII. HEARSAY
RULE 804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE
(a) Definition of Unavailability. "Unavailability as a
witness" includes situations in which the declarant--
(1) is exempted by ruling of the court on the ground of
privilege from testifying concerning the subject matter of his or
her statement; or
(2) persists in refusing to testify concerning the subject
matter of his or her statement despite an order of the court to do
so; or
(3) testifies to a lack of memory of the subject matter of his
or her statement; or
(4) is unable to be present or to testify at the hearing
because of death or then existing physical or mental illness or
infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or
in the case of a hearsay exception under subdivision (b)(2), (3),
or (4), the declarant's attendance or testimony) by process or
other reasonable means.
A declarant is not unavailable as a witness if exemption,
refusal, claim of lack of memory, inability, or absence is due to
the procurement or wrongdoing of the proponent of a statement for
the purpose of preventing the witness from attending or testifying.
(b) Hearsay Exceptions. The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition
taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now offered,
or, in a civil action or proceeding, a predecessor in interest, had
an opportunity and similar motive to develop the testimony by
direct, cross, or redirect examination.
(2) Statement Under Belief of Impending Death. In a
prosecution for homicide or in a civil action or proceeding, a
statement made by a declarant while believing that his or her death
was imminent, concerning the cause or circumstances of what the
declarant believed to be impending death.
(3) Statement Against Interest. A statement which was at the
time of its making so far contrary to the declarant's pecuniary or
proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the
declarant against another, that a reasonable person in the
declarant's position would not have made the statement unless he or
she believed it to be true. A statement tending to expose the
declarant to criminal liability and offered to exculpate the
accused is not admissible unless corroborating circumstances
clearly indicate the trustworthiness of the statement.
(4) Statement of Personal or Family History. (A) A statement
concerning the declarant's own birth, adoption, marriage, divorce,
legitimacy, relationship by blood, adoption, or marriage, ancestry,
or other similar fact of personal or family history, even though
declarant had no means of acquiring personal knowledge of the
matter stated; or (B) a statement concerning the foregoing matters,
and death also, of another person, if the declarant was related to
the other by blood, adoption, or marriage or was so intimately
associated with the other's family as to be likely to have accurate
information concerning the matter declared.
(5) Other Exceptions. A statement not specifically covered by
any of the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness, if the court
determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point for
which it is offered than any other evidence which the proponent can
procure through reasonable efforts; and (C) the general purposes of
these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may
not be admitted under this exception unless the proponent of it
makes known to the adverse party, sufficiently in advance of the
trial or hearing to provide the adverse party with a fair
opportunity to prepare to meet it, the proponent's intention to
offer the statement and the particulars of it, including the name
and address of the declarant.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE VIII. HEARSAY
RULE 805. HEARSAY WITHIN HEARSAY
Hearsay included within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms with
an exception to the hearsay rule provided in these rules.
[Effective February 1, 1985.]
ARTICLE VIII. HEARSAY
RULE 806. ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT
When a hearsay statement, or a statement defined in Rule
801(d)(2)(C), (D), or (E) has been admitted in evidence, the
credibility of the declarant may be attacked, and if attacked may
be supported, by any evidence which would be admissible for those
purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent
with his or her hearsay statement, is not subject to any
requirement that the declarant may have been afforded an
opportunity to deny or explain. If the party against whom a
hearsay statement has been admitted calls the declarant as a
witness, the party is entitled to examine the declarant on the
statement as if under cross-examination.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
RULE 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
(a) General Provision. The requirement of authentication or
identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.
(b) Illustration. By way of illustration only, and not by way
of limitation, the following are examples of authentication or
identification conforming with the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony that a
matter is what it is claimed to be.
(2) Nonexpert Opinion on Handwriting. Nonexpert opinion as to
the genuineness of handwriting, based upon familiarity not acquired
for purposes of litigation.
(3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by expert witnesses with specimens which have been
authenticated.
(4) Distinctive Characteristics and the Like. Appearance,
contents, substance, internal patterns, or other distinctive
characteristics taken in conjunction with circumstances.
(5) Voice Identification. Identification of a voice, whether
heard firsthand or through mechanical or electronic transmission or
recording, by opinion based upon hearing the voice at any time
under circumstances connecting it with the alleged speaker.
(6) Telephone Conversations. Telephone conversations, by
evidence that a call was made to the number assigned at the time by
the telephone company to a particular person or business, if (A) in
the case of a person, circumstances, including self-identification,
show the person answering to be the one called, or (B) in the case
of a business, the call was made to a place of business and the
conversation related to business reasonably transacted over the
telephone.
(7) Public Records or Reports. Evidence that a writing
authorized by law to be recorded or filed and in fact recorded or
filed in a public office, or a purported public record, report,
statement, or data compilation, in any form, is from the public
office where items of this nature are kept.
(8) Ancient Documents or Data Compilation. Evidence that a
document or data compilation, in any form, (A) is in such condition
as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been
in existence 20 years or more at the time it is offered.
(9) Process or System. Evidence describing a process or
system used to produce a result and showing that the process or
system produces an accurate result.
(10) Methods Provided by Statute or Rule. Any method of
authentication or identification provided by the Supreme Court of
Appeals of West Virginia or by a West Virginia statute.
[Effective February 1, 1985.]
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
RULE 902. SELF-AUTHENTICATION
Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to the following:
(1) Domestic Public Documents Under Seal. A document bearing
a seal purporting to be that of the United States, or of any state,
district, commonwealth, territory, or insular possession thereof,
or the Panama Canal Zone, or the Trust Territory of the Pacific
Islands, or of a political subdivision, department, officer, or
agency thereof, and a signature purporting to be an attestation or
execution.
(2) Domestic Public Documents Not Under Seal. A document
purporting to bear the signature in the official capacity of an
officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having
official duties in the district or political subdivision of the
officer or employee certifies under seal that the signer has the
official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document purporting to be
executed or attested in an official capacity by a person authorized
by the laws of a foreign country to make the execution or
attestation, and accompanied by a final certification as to the
genuineness of the signature and official position (A) of the
executing or attesting person, or (B) of any foreign official whose
certificate of genuineness of signature and official position
relates to the execution or attestation or is in a chain of
certificates of genuineness of signature and official position
relating to the execution or attestation. A final certification
may be made by a secretary of embassy or legation, consul general,
consul, vice consul, or consular agent of the United States, or a
diplomatic or consular official of the foreign country assigned or
accredited to the United States. If reasonable opportunity has
been given to all parties to investigate the authenticity and
accuracy of official documents, the court may, for good cause
shown, order that they be treated as presumptively authentic
without final certification or permit them to be evidenced by an
attested summary with or without final certification.
(4) Certified Copies of Public Records. A copy of an official
record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a
public office, including data compilations in any form, certified
as correct by the custodian or other person authorized to make the
certification, by certificate complying with paragraph (1), (2), or
(3) of this rule or complying with any law of the United States or
of this state.
(5) Official Publications. Books, pamphlets, or other
publications purporting to be issued by public authority.
(6) Newspapers and Periodicals. Printed materials purporting
to be newspapers or periodicals.
(7) Trade Inscriptions and the Like. Inscriptions, signs,
tags, or labels purporting to have been affixed in the course of
business and indicating ownership, control, or origin.
(8) Acknowledged Documents. Documents accompanied by a
certificate of acknowledgment executed in the manner provided by
law by a notary public or other officer authorized by law to take
acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper,
signatures thereon, and documents relating thereto to the extent
provided by general commercial law.
(10) Presumptions Created by Law. Any signature, document, or
other matter declared by any law of the United States or of this
state to be presumptively or prima facie genuine or authentic.
[Effective February 1, 1985; amended effective July 1, 1994.]
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
RULE 903. SUBSCRIBING WITNESS' TESTIMONY UNNECESSARY
The testimony of a subscribing witness is not necessary to
authenticate a writing unless required by the laws of the
jurisdiction whose laws govern the validity of the writing.
[Effective February 1, 1985.]
RULE 1001. DEFINITIONS
For purposes of this article the following definitions are
applicable:
(1) Writings and Recordings. "Writings" and "recordings"
consist of letters, words, or numbers, or their equivalent, set
down by handwriting, typewriting, printing, photostating,
photographing, magnetic impulse, mechanical or electronic
recording, or other form of data compilation.
(2) Photographs. "Photographs" include still photographs,
X-ray films, video tapes, and motion pictures.
(3) Original. An "original" of a writing or recording is the
writing or recording itself or any counterpart intended to have the
same effect by a person executing or issuing it. An "original" of
a photograph includes the negative or any print therefrom. If data
are stored in a computer or similar device, any printout or other
output readable by sight, shown to reflect the data accurately, is
an "original."
(4) Duplicate. A "duplicate" is a counterpart produced by the
same impression as the original, or from the same matrix, or by
means of photography, including enlargements and miniatures, or by
mechanical or electronic recording, or by chemical reproduction, or
by other equivalent techniques, which accurately reproduces the
original.
[Effective February 1, 1985.]
RULE 1002. REQUIREMENT OF ORIGINAL
To prove the content of a writing, recording, or photograph,
the original writing, recording, or photograph is required, except
as otherwise provided in these rules or by statute.
[Effective February 1, 1985.]
RULE 1003. ADMISSIBILITY OF DUPLICATES
A duplicate is admissible to the same extent as an original
unless (1) a genuine question is raised as to the authenticity of
the original or (2) in the circumstances it would be unfair to
admit the duplicate in lieu of the original.
[Effective February 1, 1985.]
RULE 1004. ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS
The original is not required, and other evidence of the
contents of a writing, recording, or photograph is admissible if--
(1) Originals Lost or Destroyed. All originals are lost or
have been destroyed, unless the proponent lost or destroyed them in
bad faith; or
(2) Original Not Obtainable. No original can be obtained by
any available judicial process or procedure; or
(3) Original in Possession of Opponent. At a time when an
original was under the control of the party against whom offered,
that party was put on notice, by the pleadings or otherwise, that
the contents would be a subject of proof at the hearing, and that
party does not produce the original at the hearing; or
(4) Collateral Matters. The writing, recording, or photograph
is not closely related to a controlling issue.
[Effective February 1, 1985; amended effective July 1, 1994.]
RULE 1005. PUBLIC RECORDS
The contents of an official record, or of a document
authorized to be recorded or filed and actually recorded or filed,
including data compilations in any form, if otherwise admissible,
may be proved by copy, certified as correct in accordance with Rule
902 or testified to be correct by a witness who has compared it
with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then
other evidence of the contents may be given.
[Effective February 1, 1985.]
RULE 1006. SUMMARIES
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in court may be
presented in the form of a chart, summary, or calculation. The
originals, or duplicates, shall be made available for examination
or copying, or both, by other parties at a reasonable time and
place in advance of trial. The court may order that they be
produced in court.
[Effective February 1, 1985.]
RULE 1007. TESTIMONY OR WRITTEN ADMISSION OF A PARTY
Contents of writings, recordings, or photographs may be proved
by the testimony or deposition of the party against whom offered or
by that party's written admission, without accounting for the
nonproduction of the original.
[Effective February 1, 1985; amended effective July 1, 1994.]
RULE 1008. FUNCTIONS OF COURT AND JURY
When the admissibility of other evidence of contents of
writings, recordings, or photographs under these rules depends upon
the fulfillment of a condition of fact, the question whether the
condition has been fulfilled is ordinarily for the court to
determine in accordance with the provisions of Rule 104. However,
when an issue is raised (a) whether the asserted writing ever
existed, or (b) whether another writing, recording, or photograph
produced at the trial is the original, or (c) whether other
evidence of contents correctly reflects the contents, the issue is
for the trier of fact to determine as in the case of other issues
of fact.
[Effective February 1, 1985.]
ARTICLE XI. MISCELLANEOUS
RULE 1101. APPLICABILITY
(a) Rules Applicable. Except as otherwise provided in
subdivision (b), these rules apply to all actions and proceedings
in the courts of this state.
(b) Rules Inapplicable. Unless otherwise provided by rules of
the Supreme Court of Appeals, these rules other than those with
respect to privileges do not apply in the following situations:
(1) Preliminary Questions of Fact. The determination of
questions of fact preliminary to admissibility of evidence when the
issue is to be determined by the court under Rule 104(a).
(2) Grand Jury. Proceedings before grand juries.
(3) Miscellaneous Proceedings. Sentencing; granting or
revoking probation; issuance of warrants for arrest, criminal
summonses and search warrants; and proceedings with respect to
release on bail or otherwise.
(4) Contempt Proceedings. Contempt proceedings in which the
court may act summarily.
[Effective February 1, 1985; amended effective August 1, 1991.]
ARTICLE XI. MISCELLANEOUS
RULE 1102. TITLE
These rules may be known and cited as the West Virginia Rules
of Evidence (WVRE).
[Effective February 1, 1985.]